Judges Commons^™

Explaining Constitutional Review In New Democracies: The Case Of Taiwan, Nuno Garoupa, Veronica Grembi, Shirley Ching-Ping Lin

Washington International Law Journal

This paper extends the empirical analysis of the determinants of judicial behavior by considering the Taiwanese case. Taiwan is a particularly interesting case because the establishment and development of constitutional review corresponds to a political transition from an authoritarian regime dominated by one party to an emerging democracy. We test the attitudinal hypothesis by making use of a new dataset of ninety-seven decisions issued by the Taiwanese constitutional court in the period between 1988 and 2008. The attitudinal hypothesis is that the Taiwanese constitutional judges respond to party interests, either because their preferences coincide with the appointer or because they …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Differentiating The Federal Circuit, Elizabeth I. Winston

Scholarly Articles

In 1982, Congress created the United States Court of Appeals for the Federal Circuit. Often referred to as an experiment, the Federal Circuit has flourished. Born again from the ashes of its predecessors, the aptly nicknamed Phoenix Court continues to grow in significance, stature, and strength. As it grows, however, the court remains rooted in its history and in its unique nature. This Article explores the Federal Circuit’s structure and its impact on the development of Federal Circuit jurisprudence. The Federal Circuit is distinguishable by more than its national jurisdiction – the very essence of the court sets it apart …

Judicial Activism And The Interpretation Of The Voting Rights Act, Luis Fuentes-Rohwer

Cardozo Law Review

No abstract provided.

The Four Pillars Of Constitutional Doctrine, Suzanna Sherry

Cardozo Law Review

No abstract provided.

Samantar And Executive Power, Peter B. Rutledge

Vanderbilt Journal of Transnational Law

This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as "executive lawmaking." While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …

In Praise Of Procedurally Centered Judicial Disqualification - And A Stronger Conception Of The Appearance Standard: Better Acknowledging And Adjusting To Cognitive Bias, Spoliation And Perceptual Realities, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Lightened Scrutiny, Bert I. Huang

Faculty Scholarship

The current anxiety over judicial vacancies is not new. For decades, judges and scholars have debated the difficulties of having too few judges for too many cases in the federal courts. At risk, it is said, are cherished and important process values. Often left unsaid is a further possibility: that not only process, but also the outcomes of cases, might be at stake. This Article advances the conversation by illustrating how judicial overload might entail sacrifices of first-order importance.

I present here empirical evidence suggesting a causal link between judicial burdens and the outcomes of appeals. Starting in 2002, a …

Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

I am really happy to be part of this tribute to Paul Verkuil. It may surprise those in the audience to learn that I am bringing some needed diversity to today's proceedings - I am the only other Dutch American on the program! But perhaps my twenty years at the "Administrative Conference" also qualifies me to say a few words about how thrilled I am that we have it back - "ACUS 2.0" we can call it, complete with a website this time- and that Paul is at its helm. And I want to thank Paul for bringing me back …

Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Book Review. Louis D. Brandeis And The Making Of Regulated Competition, 1900-1932 By Gerald Berk, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Articles by Maurer Faculty

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been …

Iowa’S 2010 Judicial Election: Appropriate Accountability Or Rampant Passion?, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Although 89% of state judges (appellate and general-jurisdiction trial judges) face some type of election, judicial elections are rarely thought of even by academics interested in elections. Iowa’s 2010 election, in which three Justices were defeated, is one of the most significant judicial elections ever. The Justices lost their seats because they participated in a unanimous 2009 decision upholding gay marriage. That decision stirred intense opposition among “social conservatives”, in Iowa a substantial proportion of the population and actively led by more than 100 ministers.

That active opposition was one of eight elements that created a perfect storm against the …

Lies, Damned Lies, And Judicial Empathy, Mary Anne Franks

Articles

No abstract provided.

The Anti-Empathic Turn, Robin West

Georgetown Law Faculty Publications and Other Works

Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy–the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.

Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges …

Preface, Stanley W. Hammer

University of Richmond Law Review

No abstract provided.

Judge Thompson And The Appellate Court Confirmation Process, Carl W. Tobias

Law Faculty Publications

Judge 0. Rogeriee Thompson's appointment to the United States Court of Appeals for the First Circuit was an historic moment, as she became the tribunal's first African American member. The Senate confirmed her in five months on a 98-0 vote, more expeditiously than any of President Barack Obama's other appellate nominees. Indeed, Fourth Circuit nominee Judge Albert Diaz waited thirteen months for approval. The slow pace of judicial confirmation demonstrates that the charges and recriminations, the partisanship and the serial paybacks, which have infused appointments for two decades, remain. Judge Thompson's confirmation, accordingly, deserves celebration and recounting. It both illuminates …

Judging Women, Mitu Gulati, Stephen J. Choi, Mirya Holman, Eric A. Posner

Faculty Scholarship

Judge Sonia Sotomayor’s assertion that female judges might be “better” than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Primarily using a dataset of all the state high court judges in 1998-2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. We find that the male and female judges perform at about the same level. Roughly similar findings show up in data from the …

Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher

Faculty Scholarship

No abstract provided.

The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty

Public Funding Of Judicial Campaigns: The North Carolina Experience And The Activism Of The Supreme Court, Paul D. Carrington

Faculty Scholarship

In recent years, the problem of selecting judges to sit on the highest state courts has become a national crisis. North Carolina remains among the states whose constitutions require competitive elections of all its judges. Presently, all candidates for its judicial offices must first compete for election in a non-partisan primary, a system motivated by the desire to maximize the power of the state’s citizen-voters to choose their judges and hold them accountable for their fidelity to the law. Some observers have continued to celebrate such judicial elections as an honorable democratic empowerment, while others have not. The disagreement has …

David Trager: Jurist, Jeffrey B. Morris

Scholarly Works

No abstract provided.

Courts' Increasing Consideration Of Behavioral Genetics Evidence In Criminal Cases: Results Of A Longitudinal Study, Deborah W. Denno

Faculty Scholarship

This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the preceding thirteen years (1994-2007). This combined collection of eighty-one criminal cases employing behavioral genetics evidence offers a rich context for determining how the criminal justice system has been handling genetics factors for nearly two decades, but also why the last four years reveal particularly important discoveries. …

Book Review, Derek Kiernan-Johnson

Publications

No abstract provided.

Economic Crisis And The Rise Of Judicial Elections And Judicial Review, Jed Handelsman Shugerman

Faculty Scholarship

Almost ninety percent of state judges today face some kind of popular election. This uniquely American institution emerged in a sudden burst from 1846 to 1853, as twenty states adopted judicial elections. The modern perception is that judicial elections, then and now, weaken judges and the rule of law. When judicial elections swept the country in the late 1840s and 1850s, however, the key was a new movement to limit legislative power, to increase judicial power, and to strengthen judicial review. Over time, judicial appointments had become a tool of party patronage and cronyism.

Legislative overspending on internal improvements and …

Ethical Guidance For A Grander Jury, Anna Offit

Faculty Publications

Section I of this Note explores the extent to which the American Bar Association (ABA) Practice Guide, and similar major ethical conventions and advisory opinions, present competing interpretations of the grand jury's role in the criminal justice system. The lack of prosecutorial disclosure of exculpatory evidence, grand jury secrecy, and the abundance of plea negotiations demonstrate how historicized visions of the grand jury are appropriated to serve distinct conceptions of the institution's proper role. Section II offers a historical narrative of the grand jury that places grand jurors' "local knowledge" and experience at the heart of an inherently interpretive and …

Judicial Retirement And Return To Practice, Mary Clark

Scholarly Articles in Law Reviews & Journals

This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.

This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than …

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

Scholarly Articles in Law Reviews & Journals

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

Unplugged - When Do Supreme Court Justices Need To Just Sit Down And Be Quiet?, Sonja R. West

Popular Media

This article looks at Supreme Court justices providing their opinions on various legal topics prior to resigning from the bench.

Supreme Court Of The United States, October Term 2010 Preview, Update: December 7, 2010, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.