Judges Commons^™

Judicial Independence And Social Welfare, Michael D. Gilbert

Michigan Law Review

Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and resolve cases impartially and in accordance with law. Yet independence comes with a hazard. Precisely because they are independent, judges can ignore law and pursue private agendas. For two centuries, scholars have debated those ideas and the underlying tradeoff: independence versus accountability. They have achieved little consensus, in part because independence raises difficult antecedent questions. We cannot decide how independent to make a judge until we agree on what a judge is supposed to do. That depends on one’s views about …

The Lock-In Effect Of Preliminary Injunctions, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Judges suffer from the same cognitive biases that afflict the rest of us. Judges use shortcuts to help them deal with the uncertainty and time pressure inherent in the judicial process. Judges should be aware of the conditions when those shortcuts lead to systemic biases in decision-making, and adjust legal standards in order to reduce or avoid such bias altogether.

One important bias that has been identified by economists and psychologists is the lock-in effect. The lock-in effect causes a decision-maker who must revisit an earlier decision to be locked-in to the earlier decision. The effect is particularly pronounced where …

Judicial Decisionmaking, Empathy, And The Limits Of Perception, Nicole Negowetti

Law Faculty Publications

No abstract provided.

Surgeons Or Scribes? The Role Of United States Court Of Appeals Law Clerks In "Appellate Triage", Todd C. Peppers, Micheal W. Giles, Bridget Tainer-Parkins

Scholarly Articles

Using original survey data, we explore how federal courts of appeals judges select and use their law clerks—a question that we answered in an earlier article about federal district court clerks. As with that first article, we do not intend to tackle such normative issues as whether courts of appeals law clerks possess too much influence over the judicial process or whether the selection criteria used by these judges is appropriate. What we will present, however, is descriptive data on the criteria that courts of appeals judges use to pick their law clerks as well as the tasks assigned to …

Judicial Assistants Or Junior Judges: The Hiring, Utilization, And Influence Of Law Clerks, Chad Oldfather, Todd C. Peppers

Scholarly Articles

Law clerks have been part of the American judicial system since 1882, when Supreme Court Justice Horace Gray hired a young Harvard Law School graduate named Thomas Russell to serve as his assistant. Justice Gray paid for his law clerks out of his own pocket until Congress authorized funds for the hiring of “stenographic clerks” in 1886. The Gray law clerks, however, were not mere stenographers. Justice Gray assigned them a host of legal and non-legal job duties. His clerks discussed the record and debated the attendant legal issues with Justice Gray prior to oral argument, conducted legal research, and …

Ghana’S Jury System On Trial, Dennis D. Adjei

Duke Law Master of Judicial Studies Theses

Civil cases in Ghana are tried by the bench. Criminal cases are also handled by bench trials, except for certain indictable offenses, which may be tried by a judge or jury. Not all serious offenses are tried by jury. And a trend is developing away from jury to bench trials. For example, treason is punishable by death, but the case is determined in a bench trial by three High Court Judges. Robbery, which had been an indictable offense, is now tried by either jury or bench trial at the discretion of the Attorney-General; and prosecutors consistently have been opting for …

Leadership And Management Training In The North Carolina Judicial System: An Examination Of Identified Need, James E. Hardin Jr.

Duke Law Master of Judicial Studies Theses

The purpose of this paper is to ask whether North Carolina public service lawyers and judges believe that their judicial districts perform with maximum efficiency or whether there could be functional improvement with leadership and management training for system leaders, and with the perceived need of such training, as articulated by these professionals, what a general training model might look like. A brief examination of the institutionally provided leadership and management training offered to system leaders shows sparse resources are expended to develop leaders and train them so that they have the skills to direct individual organizations and change the …

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 …

Tribute To Justice Rosalie Wahl, Eric J. Magnuson

William Mitchell Law Review

No abstract provided.

Tribute To Justice Rosalie Wahl, Donovan W. Frank

William Mitchell Law Review

No abstract provided.

Tribute To Justice Rosalie Wahl, Eric S. Janus

William Mitchell Law Review

No abstract provided.

Tribute To Justice Rosalie Wahl, Harriet Lansing

William Mitchell Law Review

No abstract provided.

Tribute To Justice Rosalie Wahl, Sharon Sayles Belton

William Mitchell Law Review

No abstract provided.

Supreme Court Of The United States, October Term 2014 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

The March Of Judicial Cosmopolitanism And The Legacy Of Enemy Combatant Case Law, Madalina Lulia Sontrop

LLM Theses

This thesis explores the concept of judicial cosmopolitanism and its prevalence in enemy combatant case law. The author draws upon the theoretical and philosophical underpinnings of cosmopolitanism and cosmopolitan law to describe judicial cosmopolitanism as form of legal discourse through which judges show a willingness to extend constitutional protections based on a contemporary, functional understanding of sovereign jurisdiction. The purpose of this work is to address the correlation between enemy combatant jurisprudence and the aforementioned understanding of judicial cosmopolitanism. It is argued that a march of judicial cosmopolitanism developed early in enemy combatant cases, and that it came to a …

Should Courts Do Behavioral Analysis Of Boardroom Conduct?, Dale A. Oesterle

Journal of Business & Technology Law

No abstract provided.

A Case Study Of Patent Litigation Transparency, Bernard Chao, Derigan Silver

Sturm College of Law: Faculty Scholarship

By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially …

Gerald Bard Tjoflat: A Profile, Daniel S. Bowling Iii

Faculty Scholarship

No abstract provided.

The Effectiveness Of International Adjudicators, Laurence R. Helfer

Faculty Scholarship

This chapter, in the Oxford Handbook of International Adjudication, provides an overview of the burgeoning literature on the effectiveness of international courts and tribunals (ICs). It considers four dimensions of effectiveness that have engendered debates among scholars or received insufficient scrutiny. The first dimension, case-specific effectiveness, evaluates whether the litigants to a specific dispute change their behavior following an IC ruling, an issue closely linked to compliance with IC judgments. The second variant, erga omnes effectiveness, assesses whether IC decisions have systemic precedential effects that influence the behavior of all states subject to a tribunal’s jurisdiction. The third approach, embeddedness …

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 …

Tribute To Randall Shepard, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

The Continuing Battle Over The Second Amendment, Allen K. Rostron

Faculty Works

No abstract provided.

The Jury Wants To Take The Podium -- But Even With The Authority To Do So, Can It? An Interdisciplinary Examination Of Jurors' Questioning Of Witnesses At Trial, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Behind The U.S. Reports: Justice Brennan's Unpublished Opinions And Memoranda In New York Times V. Sullivan And Its Progeny, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The contributions Justice William J. Brennan Jr. made to free expression in general and the law of libel in particular are unquestioned. His opinion in New York Times Co. v. Sullivan and cases that followed established sturdy protection for critics of public officials and helped further the marketplace of ideas that is so important for public discourse. Justice Brennan wrote thousands of words about Sullivan and its impact that never appeared in published opinions, however. Often he was required to alter his writings to accommodate the views of other justices needed for a majority. Those unpublished opinions – and memoranda …

Nlrb V. Noel Canning Presents A Nonjusticiable Political Question, Victor Williams

Cardozo Law Review de•novo

This Article argues that the Noel Canning challenge to the President’s use of his recess appointment authority presents a nonjusticiable political question. The work draws from arguments developed for this author’s Supreme Court amicus briefs in Noel Canning, other amicus briefs lodged during the past year for related actions in the Third, Fourth, Seventh, Ninth, and D.C. Circuits, and a variety of this author’s commentary on federal appointments.

Institutional Stress And The Federal District Courts: Judicial Emergencies, Vertical Norms, And Pretrial Dismissals, Daniel J. Knudsen

Utah Law Review

This Article examines the effects of judicial emergencies on the federal district courts. The Administrative Office of the U.S. Courts declares judicial emergencies when a weighted statistic of filings and vacancy days exceeds certain thresholds. This Article presents evidence on the relationship between emergency status in a judicial circuit and the frequency of pretrial disposition in federal district courts within that circuit: a federal district court is statistically more likely to dismiss a case before trial if its corresponding circuit court is in emergency. This evidence suggests that emergency status may affect normative expectations between the federal district courts and …

Juries, Lay Judges, And Trials, Toby S. Goldbach, Valerie P. Hans

Cornell Law Faculty Working Papers

“Juries, Lay Judges, and Trials” describes the widespread practice of including ordinary citizens as legal decision makers in the criminal trial. In some countries, lay persons serve as jurors and determine the guilt and occasionally the punishment of the accused. In others, citizens decide cases together with professional judges in mixed decision-making bodies. What is more, a number of countries have introduced or reintroduced systems employing juries or lay judges, often as part of comprehensive reform in emerging democracies. Becoming familiar with the job of the juror or lay citizen in a criminal trial is thus essential for understanding contemporary …

Give Ghosts A Chance: Why Federal Courts Should Cease Sanctioning Every Legal Ghostwriter, Blake G. Tanase

Georgia Law Review

For decades, federal judges have punished attorneys who draft documents for pro se litigants. Meanwhile, many states and the American Bar Association have come to accept this practice as beneficial for low-income litigants and the legal system at large. The Second Circuit recently broke from the federal tradition and found that an attorney's so-called "ghostwriting"of litigation documents for pro se litigants was not sanctionable conduct. That court noted the changes taking place at the state level and rejected other federal courts' justifications for sanctioning legal ghostwriting, but did not elaborate as to why legal ghostwriting should be considered acceptable attorney …

Bringing A World Of Light To Technology And Judicial Ethics, David Hricik

Articles

The Luddites thought that by smashing machines in early 19th Century England, they could eliminate the threat that those machines presented to them. Of course, they were wrong. As was the case during the Luddites’ time, technology continues to march inexorably onward in today’s society. As a result, those within the legal community—judges in particular—have no choice but to begin using technology. Although judges are currently using technology, they sometimes do so without understanding what they are doing.

Already, today’s “new-fangled” contraptions have ensnared judges. Perhaps the most widely known example is Judge Kozinski of the United States Court of …