Judges Commons^™

Chevron'S Legacy, Justice Scalia's Two Enigmatic Dissents, And His Return To The Fold In City Of Arlington, Tex. V. Fcc, Stephen J. Leacock

Catholic University Law Review

The creation by the judiciary of the doctrine of Chevron deference to administrative agencies’ determinations, followed by the judiciary’s application and supervision of the Chevron deference doctrine in Administrative Law continue. Protection by the judiciary of the evolution of the doctrine also continues as an integral component of the judiciary’s contribution to the central objective of the three coequal branches of government to achieve for the United States a more perfect union. However, synergistic cooperation between the three branches in order to achieve that central objective requires that each branch honor its own constitutional obligation under the United States Constitution …

In Search Of The Real Roberts Court, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The New Old Legal Realism, Tracey E. George, Mitu Gulati, Ann C. Mcginley

Northwestern University Law Review

No abstract provided.

Diversifying The Federal Bench: Is Universal Legitimacy For The U.S. Justice System Possible?, Nancy Scherer

Northwestern University Law Review

No abstract provided.

Realism About Judges, Richard A. Posner

Northwestern University Law Review

No abstract provided.

Beyond Principal-Agent Theories: Law And The Judicial Hierarchy, Pauline T. Kim

Northwestern University Law Review

No abstract provided.

The Chief Justice, The Appointment Of Inferior Officers, And The "Court Of Law" Requirement, James E. Pfander

Northwestern University Law Review

In addition to his judicial duties, the Chief Justice presides over a sprawling judicial bureaucracy. Each year, the Chief fills positions within that bureaucracy, designating Article III judges to various specialty courts and appointing such officers as the director of the Administrative Office of the U.S. Courts. Although critics worry that the Chief may use his appointment role to shape Third Branch policy unduly, scholars view the role as constitutionally benign. This Article questions the Chief’s role. The Constitution authorizes Congress to vest the appointment of inferior officers in the “courts of law” but not the Chief Justice. History teaches …

A Typology Of Judging Styles, Corey Rayburn Yung

Northwestern University Law Review

This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing, Consensus …

Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson

Northwestern University Law Review

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature—attributes that have the …

Public Interest Lawyering & Judicial Politics: Four Cases Worth A Second Look In Williams-Yulee V. The Florida Bar, Ruthann Robson

Publications and Research

This "First Look" Essay argues that the Court should consider public interest lawyering when it decides a First Amendment challenge to the Canon prohibiting judicial candidates from soliciting money in Williams-Yulee v. The Florida Bar. It suggests that four cases are worth a "second look": Republican Party of Minnesota v. White (2002); Caperton v. A.T. Massey Coal Co. (2009); Shelley v. Kraemer (1948); and a Florida Supreme Court case involving discipline of a judge, In re Hawkins.

Gossiping About Judges, Jordan M. Singer

Florida State University Law Review

Gossip about judges is an essential source of information to civil litigators. Hearing third party assessments of a judge’s personality, demeanor, intelligence, curiosity, and openness to new interpretations of the law can substantially affect a lawyer’s strategic decisions during the course of litigation, and sometimes whether litigation occurs at all. Yet gossip about judges rarely merits mention and has evaded serious study. This Article brings attorney gossip about judges out into the open, identifying its strategic benefits and drawbacks and explaining how attorneys use gossip (and other secondhand information on judges) to anticipate the likely outcome of judicial decisions. It …

A Conversation With Ruth Bader Ginsburg, Associate Justice Of The Supreme Court Of The United States, University Of Michigan Law School

Event Materials

Program for the 2015 Tanner Lecture on Human Values on February 6, 2015, sponsored by the University of Michigan Law School and the University of Michigan LSA Department of Philosophy.

Initial Reflections On An Interdisciplinary Approach To Rule Of Law Studies, Joel H. Samuels

Articles

In this essay, we attempt to lay the initial groundwork for a clearer understanding of rule of law both as a concept and as a distinct field. We respond to the assertions that the rule of law field is non-existent or incoherent, and assert that a field of rule of law is not impossible to ascertain. First, we survey how rule of law - as both a term and a state of political being - is understood by practitioners and scholars, as well as how scholars reconcile the lack of a clear, widely universal understanding of the concept of rule …

The State Of Recusal Reform, Charles G. Geyh, Myles Lynk, Robert S. Peck, Toni Clarke

Articles by Maurer Faculty

No abstract provided.

Addressing Three Problems In Commentary On Catholics At The Supreme Court By Reference To Three Decades Of Catholic Bishops' Amicus Briefs, Kevin C. Walsh

Scholarly Articles

Much commentary about Catholic Justices serving on the Supreme Court suffers from three related shortcomings: (1) episodic, one-case-at-a-time commentary; (2) asymmetric causal attributions resulting from inattention to cases in which Catholic Justices vote for outcomes opposite those advocated by the Catholic Bishops' Conference; and (3) inattention to broader jurisprudential and ideological factors. This article uses an overlooked resource to identify and counteract these shortcomings. It assesses the votes of the Justices-Catholic and non-Catholic alike-in the full set of cases from the Rehnquist Court and the Roberts Court (through June 2014) in which the United States Conference of Catholic Bishops filed …

Changing The Rules Of The (International) Game: How International Law Is Turning National Courts Into International Political Actors, Osnat Grady Schwartz

Washington International Law Journal

Courts are known to be political actors. National courts play the political game in the national domain. International courts play it in the international sphere. This article studies the transformation of national courts into international political actors (IPAs), and the part international law plays in so making them. The article identifies, categorizes, and demonstrates the influence of national courts and judges on international relations (IR), separating the influence into two main categories: direct and indirect. Direct influence, is the effect of a national court taking a position on international issues in concrete situations with immediate IR implications. Indirect influence is …

The Rise And Fall Of Bad Judge: Lady Justice Is No Tramp, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Of Judges, Law, And The River: Tacit Knowledge And The Judicial Role, Chad M. Oldfather

Journal of Dispute Resolution

“What does it mean to be a judge?” That’s a tall order, and one is tempted to begin—and perhaps to end—by formulating taxonomy of characteristics that judges ought to have. Indeed, that is a tactic that others have used. The resulting lists differ in their particulars, but are broadly similar. The enumerated traits include attributes like intelligence, legal knowledge, judgment, decisiveness, and so on.

Marriage Equality Comes To Virginia, Carl W. Tobias

Law Faculty Publications

Part I of this article chronicles marriage equality's rise and development nationally. It ascertains that challenges, which fos- tered the invalidation of marriage prohibitions that essentially govern nearly all jurisdictions, including Virginia, have triggered some controversy. Part II scrutinizes Judge Wright Allen's resolu- tion of the Virginia litigation and the United States Court of Ap- peals for the Fourth Circuit determination, which affirmed her ruling. This portion finds that the district jurist comprehensively assessed the relevant legal and factual issues when striking down the proscription while the Fourth Circuit appropriately upheld her opinion. Part III then derives lessons from the …

Our Unconstitutional Recusal Procedure, Dmitry Bam

Faculty Publications

In this article, I argue that the recusal procedure used in state and federal courts for nearly all of American history is unconstitutional. For centuries, recusal procedure in the United States has largely resembled that of England before American independence. To this day, in most American courtrooms, the judge hearing the case decides whether recusal is required under the applicable substantive recusal rules. If the judge determines that she can act impartially, or that her impartiality could not reasonably be questioned, the judge remains on the case. And although the judge’s decision is typically subject to appellate review — with …

Remarks: Caperton's Next Generation -- Beyond The Bank, Dmitry Bam

Faculty Publications

On November 14, 2014, a symposium entitled, "Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton," was held at New York University. The symposium was sponsored by the Brennan Center for Justice, the American Bar Association's Center for Professional Responsibility, and NYU's Journal of Legislation and Public Policy. This document contains the transcript starting from Dmitry Bam's remarks from one of the four panels, and is entitled "Caperton's Next Generation: Beyond the Bank." The panel members included Professors Jed Shugerman, Debra Lyn Bassett, Gregory S. Parks, Dmitry Bam, and Rex Perschbacher.

Unspringing The Witness Memory And Demeanor Trap: What Every Judge And Juror Needs To Know About Cognitive Psychology And Witness Credibility, Mark W. Bennett

American University Law Review

The soul of America's civil and criminal justice systems is the ability of jurors and judges to accurately determine the facts of a dispute. This invariably implicates the credibility of witnesses. In making credibility determinations, jurors and judges necessarily decide the accuracy of witnesses' memories and the effect of the witnesses' demeanor on their credibility. Almost all jurisdictions' pattern jury instructions about witness credibility explain nothing about how a witness's memories for events and conversations work-and how startlingly fallible memories actually are. They simply instruct the jurors to consider the witness's "memory" with no additional guidance. Similarly, the same pattern …

Get Out From Under Your Overcoat, Jeanne J. Graham

William Mitchell Law Review

No abstract provided.

Judicial Selection In Congress’ Lame Duck Session, Carl W. Tobias

Indiana Law Journal

This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

Law Faculty Articles and Essays

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle— Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.

In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in …

The Jekyll And Hyde Of First Amendment Limits On The Regulation Of Judicial Campaign Speech, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Local Judges And Local Government, Ethan J. Leib

Faculty Scholarship

This interview-based empirical study explores how local judges view themselves and their crosscutting roles in local and state government. In particular, it considers local judges’ relationships with the public that elects them, the executive and legislative branches of their localities, and the larger statewide judicial bureaucracy of which they are a very large but somewhat disconnected part. The Article reports on the results of interviews with local judges at the county, town, and village levels — and suggests some broader lessons for scholars, officials, and policymakers interested and active in local government law and politics. Those who study local government …

High Court Pretense, Lower Court Candor: Judicial Impartiality After Capterton V. Massey Coal Co., Lynne H. Rambo

Faculty Scholarship

Apolitical, impartial judging has always been our judicial ideal. In the last twenty years, however, special interest groups have sought power over (and through) judges by pouring millions into judicial elections, and the Court has recognized their first amendment right to do so. In the midst of this politicization of judicial elections, the Court five years ago reinforced the impartiality ideal, holding very broadly in Caperton v. Massey Coal Co. that it violates due process for a judge to sit whenever there is a “probability of bias,” i.e., whenever the average judge is unlikely to be neutral. Caperton involved a …

When Disciplines Collide: Polygamy And The Social Sciences On Trial, Jodi Lazare

Articles, Book Chapters, & Popular Press

This article draws on the Supreme Court of British Columbia's Reference re: Section 293 of the Criminal Code of Canada [the Polygamy Reference] as a concrete example of the benefits and limitations of intense judicial reliance on social science evidence in the adjudication of constitutional rights and freedoms at the trial level. By examining the evidence tendered, I suggest that the current adversarial model of adjudication is illsuited to combining the legal and the social scientific endeavours. The divergent values, methodologies and objectives of the legal and scientific enterprises severely limit the benefits that the former can yield, thus compromising …

Hryniak: Two Years Later: The Multiple Applications Of ‘That Summary Judgment Case’ From The Supreme Court Of Canada, Jessica Fullerton, Suzie Dunn

Articles, Book Chapters, & Popular Press

In January 2014, the Supreme Court of Canada released its decision in Hryniak v Mauldin2 and called for a “culture shift” in the approach to summary judgment and the civil justice system more generally. With the ambitious goal of reducing protracted, costly litigation that undermines access to justice – all the while ensuring the fair and just adjudication of disputes – it is surprising that Hryniak has not garnered more attention.

Or has it? It has been nearly two years since the Supreme Court’s call for change was levied. Since that time, Hryniak has been cited more than 800 times …