Judges Commons^™

Court Capture, Jonas Anderson

Utah Law Faculty Scholarship

Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.

This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …

Remorse Bias, M. Eve Hanan

Scholarly Works

In this article, Professor M. Eve Hanan addresses how implicit cognitive biases may affect judges when they decide whether to credit defendants' displays of remorse and how we can lessen the effects of that bias. Part I of this article introduces the main ideas to be discussed. Part II establishes the salience of remorse to punishment decisions and then demonstrates the ambiguity involved in assessing the sincerity of remorse. Part III examines existing research on implicit biases associating African Americans with criminality to consider whether judges are likely to view African American defendants' expressions of remorse as insincere and, thus, …

Rewriting Judicial Opinions And The Feminist Scholarly Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

Scholarly Works

In this introduction to an online symposium on Feminist Judgments: Rewritten Opinions of the United States Supreme Court, the editors of this groundbreaking project reflect on the journey and what remains to be done.

Judicial Peremptory Challenges As Access Enhancers, Jeffrey W. Stempel

Scholarly Works

Discussions regarding diminishing access to justice have centered on the high disputing costs, gradual contraction of substantive rights, and increasingly defendant-friendly procedure. The importance of the ideological, experiential, and jurisprudential orientation of the judges presiding over litigation at the trial level has received much less-and insufficient-attention. Because so much focus has been on federal appellate courts, commentators have largely overlooked a potentially powerful tool for improving access and promoting a fair airing of claims at the trial level: a litigant's automatic ability to transfer a case to a different judge as a matter of right to avoid judges who are …

Justice As Fair Division, Ian C. Bartrum

Scholarly Works

The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears and decides each case. Appeal to an en banc sitting of the entire Court would require a unanimous vote of all non-recused Justices. This Article explores several possible approaches in selecting the three-Justice panel. This Article proposes that applying a fair division scheme to the Court's decision-making process might act to reverse this loop and work to depoliticize the Court …

Appointing Lesbian, Gay, Bisexual, Transgender And Queer Judges In The Trump Administration, Carl W. Tobias

Law Faculty Publications

President Donald Trump incessantly brags that American citizens selected him to “Make the Judiciary Great Again” and constantly reminds the public that the huge number of federal jurists whom Trump has appointed will be deciding cases decades after his tenure is over. Trump has rapidly submitted many circuit and district court candidates, but not one of his 123 nominees has been openly lesbian, gay, bisexual, transgender or queer (LGBTQ). The White House has also instituted endeavors, specifically regarding transgender people, which seem discriminatory. Indeed, a third of the judicial nominees whom the President has appointed have compiled anti-LGBTQ records. Because …

Court Capture, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.

This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …

Adrenaline Of Excellence: The Career Of Judge Gerald Bruce Lee, Claudio Grossman, Andrew Popper

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Political Question Disconnects, Elizabeth Earle Beske

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules?, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

The classic version of the exhaustion-of-remedies requirement generally requires a party to go through all the stages of an administrative adjudication before going to court. However, the doctrine has developed a new permutation, covering situations where a petitioner for judicial review did follow all the steps of the administrative appeals process, but had failed to raise in that process the issues now sought to be litigated in court. In those cases, which have been called “issue exhaustion” cases, the thwarted petitioner will likely be out of luck since normally there is no further opportunity to raise the issue at the …

Sg's Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Think Of An Elephant? Tweeting As "Framing" Executive Power, Fernando R. Laguarda

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Historical Significance Of Judge Learned Hand: What Endures And Why, Edward A. Purcell Jr.

Articles & Chapters

The 100th anniversary of Judge Learned Hand's opinion in Masses Publishing Co. v. Patten' invites us to look back on its author's long career and to consider his contributions to American law and his significance in the nation's history. Spanning more than fifty years from the presidency of William Howard Taft to the presidency of John F. Kennedy, Hand's judicial career presents an exceptionally rich subject for such reflection.

Learning To Live With Judicial Partisanship: A Response To Cassandra Burke Robertson, Bruce Green, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Studying The "New" Civil Judges, Anna Carpenter, Jessica Steinberg, Colleen Shanahan, Alyx Mark

Faculty Articles

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …

Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer

Articles by Maurer Faculty

No abstract provided.

Judicial Selection And The Search For Middle Ground, Charles G. Geyh

Articles by Maurer Faculty

This Article seeks to transcend perennial election versus appointment debates-including debates over campaign finance and the impact of "dark money"-by taking a closer look at why judicial selection is a contentious mess and discussing how it might be fixed. First, I present the case for elective and appointive systems. Second, I show that the arguments for each system are exaggerated or flawed.Third, I explore why it has been hard for proponents of each system to perceive and acknowledge those exaggerations and flaws, and propose ways to narrow the divide. Although the divide can and should be narrowed, I conclude that …

The Law Of Nations And The Judicial Branch, Thomas H. Lee

Faculty Scholarship

No abstract provided.

Deep Pocket Jurisprudence: Where Tort Law Should Draw The Line, Victor E. Schwartz, Phil Goldberg, Christopher E. Appel

Oklahoma Law Review

No abstract provided.

Mindfulness Training For Judges: Mind Wandering And The Development Of Cognitive Resilience, Scott L. Rogers, Chris Mcaliley, Amishi P. Jha

Articles

No abstract provided.

The Behavior Of Jewish Judges: A Theoretical Study Of Religious Decision-Making, Mark Goldfeder, Michael J. Broyde

Scholarly Works

No abstract provided.

A Tribute To Judge Lazer, Eileen Kaufman

Touro Law Review

No abstract provided.

Leon D. Lazer: The Giant Among Us, Howard Glickstein

Touro Law Review

No abstract provided.

Foreword: Benjamin N. Cardozo: Judge, Justice, Scholar, Samuel J. Levine

Touro Law Review

No abstract provided.

Leon Lazer (1921-2018), Jeffrey B. Morris

Touro Law Review

No abstract provided.

One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller

Touro Law Review

No abstract provided.

Strategic Publication, Ben Grunwald

Faculty Scholarship

Under the standard account of judicial behavior when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.

This Article argues that a divided panel has a third option: strategic publication. The panel can choose …

Constitutional Preservation And The Judicial Review Of Partisan Gerrymanders, Edward B. Foley

Georgia Law Review

This Essay makes three contributions to the debate
over whether the Constitution contains a judicially
enforceable constrain on gerrymanders. First,it directly
tackles the Chief Justice'sfear of thejudiciaryappearing
partisan,observing that the same fear would exist if the
Constitution explicitly banned gerrymanders and
explaining why an implicit ban should be no less
judicially enforceable than an explicit ban under
Marbury v. Madison. Second, invoking the idea of
"institutional forbearance" in the important new book
How Democracies Die, the Essay shows how the
Elections Clause can be construed to protect
congressional districting from abuses of legislative
discretion committed by state legislatures. Together,
these …

Learning To Live With Judicial Partisanship: A Response To Cassandra Burke Robertson, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.

Ohio's Modern Courts Amendment Must Be Amended: Why And How, Richard S. Walinski, Mark D. Wagoner Jr.

Cleveland State Law Review

A 1968 amendment to the Ohio Constitution granted the Supreme Court of Ohio the authority to promulgate “rules governing practice and procedure” for Ohio courts. The amendment also provided that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect” and that no rule may “abridge, enlarge, or modify any substantive right.”

Although the amendment was explicit about automatic repeal of existing laws, it says nothing about whether the General Assembly may legislate on a procedural matter after a court rule takes effect. That silence has caused enduring confusion. …