Judges Commons^™

Limiting Article Iii Standing To "Accidental" Plaintiffs: Lessons From Environmental And Animal Law Cases, Robert J. Pushaw Jr.

Georgia Law Review

According to the Supreme Court, Article III's extension
of "judicialPower" to "Cases" and "Controversies"limits
standing to plaintiffs who can demonstrate an
individualized "injury in fact" that was caused by the
defendant and that is judicially redressable. Article III's
text and history, however, do not mention "injury,"
"causation,"or "redressability."
Furthermore, these standards are malleable and have
been applied to achieve ideological goals, especially in
cases involving environmental and animal-welfare laws.
Most notably, the Court has recognized an "injury in fact"
to one's aesthetic enjoyment of nature, but determining
such an injury is arbitrarybecause "aesthetics"is a matter
of personal taste. Judges have …

What Elena Kagan Could Have & Should Have Said (& Still Have Been Confirmed), Eric J. Segall

Faculty Publications By Year

During her confirmation hearings, Justice Kagan backed away from numerous critical comments she had previously made about the nomination process. No one knows why she changed her mind but it is likely that the shift resulted more from a political calculation than a change of heart about the nature of the process. This Commentary suggests that Justice Kagan could have testified consistently with her previously expressed views and still have been confirmed.

What Elena Kagan Could Have & Should Have Said (& Still Have Been Confirmed): A Reply, Eric J. Segall

Faculty Publications By Year

No abstract provided.

Wrongful Convictions In Singapore: A General Survey Of Risk Factors, Siyuan Chen, Eunice Chua

Research Collection Yong Pung How School Of Law

This article seeks to raise awareness about the potential for wrongful convictions in Singapore by analysing the factors commonly identified as contributing towards wrongful convictions in other jurisdictions, including institutional failures and suspect evidence. It also considers whether the social conditions in Singapore are favourable to discovering and publicising wrongful convictions. The authors come to the conclusion that Singapore does well on a number of fronts and no sweeping reforms are necessary However there are areas of risk viz the excessive focus on crime control rather than due process, which require some tweaking of the system.

The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow

Scholarly Articles in Law Reviews & Journals

This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal (AAT), a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation (the Tribunals, Courts and Enforcement Act) merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. …

Review Of Labor And Employment Decisions From The United States Supreme Court’S 2008–2009 Term, Kenneth G. Dau-Schmidt, Todd C. Dvorak

Articles by Maurer Faculty

In its most recently completed Term, the United States Supreme Court decided eight labor and employment law cases of some consequence. The decided cases covered a broad array of labor and employment subjects, including: the Employee Retirement Income Security Act (ERISA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), public sector labor law, and private sector labor law. Practitioners who specialize in a particular area might be tempted to focus on only the cases in their area. Academics might be tempted to try to devise some economic or logical theory …

Inter-Judge Sentencing Disparity After Booker: A First Look, Ryan W. Scott

Articles by Maurer Faculty

A central purpose of the Sentencing Reform Act was to reduce inter-judge sentencing disparity, driven not by legitimate differences between offenders and offense conduct, but by the philosophy, politics, or biases of the sentencing judge. The federal Sentencing Guidelines, despite their well-recognized deficiencies, succeeded in reducing that form of unwarranted disparity. But in a series of decisions from 2005 to 2007, the Supreme Court rendered the Guidelines advisory (Booker), set a highly deferential standard for appellate review (Gall), and explicitly authorized judges to reject the policy judgments of the Sentencing Commission (Kimbrough). Since then, the Commission has received extensive anecdotal …

(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, Victor D. Quintanilla

Articles by Maurer Faculty

This article examines the element of scienter (fraudulent intent) in claims of federal securities fraud under Section 10(b) of the Exchange Act and, more specifically, the U.S. Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) from a social psychological perspective. The field of social psychology has documented a pervasive phenomena, the Fundamental Attribution Error, the failure of decision makers to consider situational explanations, including the force of environments and social and situational norms on human conduct. In light of robust social psychological research on the Fundamental Attribution Error, legal concepts such as …

The Subjects Of The Constitution, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been …

Harvard And Yale Ascendant: The Legal Education Of The Justices From Holmes To Kagan, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

With the nomination of Elena Kagan to be a justice of the United States Supreme Court, it is quite possible that eight of the nine justices will have graduated from only two law schools—Harvard and Yale. This article frames this development in the historical context of the legal education of those justices confirmed between 1902 and 2010. What this historical review makes clear is that the Ivy League dominance of the Supreme Court is a relatively recent occurrence whose beginnings can be traced to Antonin Scalia’s 1986 confirmation. Prior to that time, although Harvard and Yale were consistently represented among …

Postpartisan Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

The problem of numerous, persistent vacancies in the federal judiciary continues to undermine expeditious, inexpensive, and fair case resolution. As the Obama administration is still in its early stages, the process for nominating and securing the confirmation of federal judges merits consideration. This Essay chronicles the origins and development of the appointments conundrum. Although enhanced federal jurisdiction and growing caseloads are partially to blame, partisan politics has also prevented swift nomination and confirmation for over twenty years. The Essay then describes the processes employed by the Obama administration during its nascency. Finally, the Essay offers suggestions to facilitate the judicial …

Diversity And The Federal Bench, Carl W. Tobias

Law Faculty Publications

Justice Sonia Sotomayor's appointment was historic. She is the first Latina Supreme Court member and President Barack Obama's initial appointment. Her confirmation is the quintessential example of his commitment to increasing ethnic and gender diversity in the judiciary; it epitomizes how the administration has nominated and appointed people of color and women to the appellate and district courts. Enhancing diversity honors valuable goals. Selection across a presidency's initial fifteen months also creates the tone. These ideas suggest that the nascent administration's judicial selection merits evaluation, which this paper conducts. Part I briefly assesses modern chief executives' divergent records in naming …

Interring The Rhetoric Of Judicial Activism, Neil S. Siegel

Faculty Scholarship

For decades, leaders of the Republican Party have decried “judicial activism” and championed “judicial restraint.” For much of that time, Republican politicians have equated judicial restraint with a commitment to judicial deference, asserting that “activist” judges disrespect the will of popular majorities. More recently, as the Republican Party has solidified its control of the federal courts and made its own claims on the Constitution, Republican politicians have tended to define judicial activism in potentially conflicting ways, mixing deference frames with claims about the autonomy of law from mere politics or personal beliefs.

In this Article, I examine these two ways …

Judicial Ability And Securities Class Actions, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

We exploit a new data set of judicial rulings on motions in order to investigate the relationship between judicial ability and judicial outcomes. The data set consists of federal district judges’ rulings on motions to dismiss, to approve the lead plaintiff, and to approve attorneys’ fees in securities class actions cases, and also judges’ decisions to remove themselves from cases. We predict that higher-quality judges, as measured by citations, affirmance rates, and similar criteria, are more likely to dismiss cases, reject lead plaintiffs, reject attorneys’ fees, and retain cases rather than hand them over to other judges. Our results are …

Schrödinger’S Cross: The Quantum Mechanics Of The Establishment Clause, Joseph Blocher

Faculty Scholarship

Perhaps the most famous character in modern physics is Schrödinger’s Cat, an unfortunate feline trapped in a box alongside a flask containing deadly poison that may or may not have been released. Thanks to the wonders of quantum mechanics, the cat is both alive and dead — “mixed or smeared out in equal parts” — until the box is opened, at which point the act of observation causes its state to collapse into either life or death.

Far away in the Mojave Desert, the “life” of a six-foot-tall cross is disputed: it is either a religious symbol or it is …

All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.

Faculty Scholarship

In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to …

Iqbal And Empathy, Darrell A. H. Miller

Faculty Scholarship

This Essay argues that empathy does and should play an important, albeit limited role, in a judge’s decision making process. Specifically, empathy is essential for making correct, principled, and unbiased judgments, because empathy is one of the few means we have to understand human motivation. Empathy is a crucial cognitive mechanism that can help compensate for common cognitive bias. As such, empathy, appropriately restricted, should be an accepted and meaningful tool for judges to use in evaluating the sufficiency of complaints, especially as they relate to Iqbal’s plausibility pleading standard.

Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi

Faculty Scholarship

Empirical scholarship on judges, judging, and judicial institutions, a staple in political science, is becoming increasingly popular in law schools. We propose that this scholarship can be improved and enhanced by greater collaboration between empirical scholars, legal theorists, and the primary subjects of the research, the judges. We recently hosted a workshop that attempted to move away from the conventional mode of involving judges and theorists in empirical research, where they serve as commentators on empirical studies that they often see as reductionist and mis-focused. Instead, we had the judges and theorists set the discussion agenda for the empiricists by …

The Costs Of Judging Judges By The Numbers, Marin K. Levy, Kate Stith, Jose A. Cabranes

Faculty Scholarship

This essay discredits current empirical models that are designed to “judge” or rank appellate judges, and then assesses the harms of propagating such models. First, the essay builds on the discussion of empirical models by arguing that (1) the judicial virtues that the legal empiricists set out to measure have little bearing on what actually makes for a good judge; and (2) even if they did, the empiricists’ chosen variables have not measured those virtues accurately. The essay then concludes that by generating unreliable claims about the relative quality of judges, these studies mislead both decision-makers and the public, degrade …

Confirmatory Legislative History , James J. Brudney

Faculty Scholarship

Textualists and intentionalists regularly lock horns over the proper approach to construing statutory language regarded as inconclusive. The interpretive debate seems less contentious, however, when the words of the law are deemed clear. There may be reasonable disagreement as to whether the text at issue in a particular controversy has a plain meaning, but if it does then that meaning arguably preempts further inquiry. Since 1990, Supreme Court majority opinions are replete with declarations such as: "Given [a] straightforward statutory command, there is no reason to resort to legislative history"; or "we do not resort to legislative history to cloud …

Current Issues In Judicial Disqualifications Symposium 2011, Michael W. Martin

Faculty Scholarship

Public confidence in the judiciary's integrity is critical, and

Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam

Faculty Publications

It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality …

In Defense Of Appearances: What Caperton V. Massey Should Have Said, Jed Handelsman Shugerman

Faculty Scholarship

In June of 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case that involves a major campaign contributor. In Caperton v. A. T. Massey Coal Co., a coal company had been hit with a $50 million jury verdict. While appealing this verdict, the company's CEO, Don Blankenship, spent $3 million to help a challenger, Brent Benjamin, who had no judicial experience, defeat the incumbent, West Virginia Supreme Court Justice Warren McGraw. Blankenship funded political attack ads by a political organization (And for the Sake of the Kids) that …

Telling Through Type: Typography And Narrative In Legal Briefs, Derek H. Kiernan-Johnson

Publications

Most legal authors today self-publish, using basic word-processing software and letting the software’s default settings determine what their documents will look like when printed. As these settings are not optimized for legal texts, they do so at their peril. The default font Times New Roman, for example, as Chief Judge Frank Easterbrook warns, is "utterly inappropriate for long documents [such as] briefs."

Commentators have started urging a more deliberate approach to legal typography. Their suggestions, however, have been content-neutral, intended for all legal texts and focused on goals such as legibility and readability.

Typography, however, has much greater potential. The …

Interring The Rhetoric Of Judicial Activism, Neil S. Siegel

Faculty Scholarship

For decades, leaders of the Republican Party have decried “judicial activism” and championed “judicial restraint.” For much of that time, Republican politicians have equated judicial restraint with a commitment to judicial deference, asserting that “activist” judges disrespect the will of popular majorities. More recently, as the Republican Party has solidified its control of the federal courts and made its own claims on the Constitution, Republican politicians have tended to define judicial activism in potentially conflicting ways, mixing deference frames with claims about the autonomy of law from mere politics or personal beliefs.

In this Article, I examine these two ways …

A Coase Theorem For Constitutional Theory, Neil S. Siegel

Faculty Scholarship

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim - that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion - is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan …

Countering The Majoritarian Difficulty, Amanda Frost

Scholarly Articles in Law Reviews & Journals

Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape. This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are …

Defending The Majoritarian Court, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Misplaced Modifiers - Say What, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

No abstract provided.