Judges Commons^™

Extending Charter Benefits To Canada’S Poor, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

While the Canadian Charter of Rights and Freedoms has had a major impact on Canada’s political landscape in its first 25 years, its impact on social and economic rights has been minimal. The courts should assume a larger role in advancing the rights of the many Canadians living in poverty and despair.

Judges have traditionally regarded matters of social and economic policy as falling within the expertise of the legislative and executive branches of the state. The Charter has done little to dispel that view. The elected branches of the state must continue to play a major role, but the …

Charles Evans Hughes, Richard D. Friedman

Book Chapters

Hughes, Charles Evans (1862-1948). Lawyer, politician, diplomat, and chief justice of the United States. Hughes was born in Glens Falls, N.Y., the son of a Baptist preacher from the English- Welsh border country who changed congregations from time to time. Young Hughes spent his earliest years in several locations in New York and New Jersey before the family settled in Brooklyn. A precocious child, he was educated both at home and in public school. At age 14, he began college at Madison (now Colgate) University, a Baptist institution. After his sophomore year, he transferred to Brown, which also had a …

Putting The Mice In Charge Of The Cheese: Why Federal Judges Cannot Always Be Trusted To Police Themselves And What Congress Can Do About It, Lara A. Bazelon

Kentucky Law Journal

No abstract provided.

Nonconsensual + Nonbinding = Nonsensical? Reconsidering Court-Connected Arbitration Programs, Amy J. Schmitz

Cardozo Journal of Conflict Resolution

Policymakers have adopted programs mandating parties to submit their disputes to court-connected arbitration hoping to garner efficiency benefits commonly associated with contractual Federal Arbitration Act (FAA) arbitration. Mandatory nonbinding arbitration, however, is ill-equipped for this task because it lacks the consensual core and finality of FAA arbitration. Instead, it often adds an inefficient layer to the litigation process and may harm those least able to protect themselves from coerced settlements or burdens of protracted litigation.

Judicial Independence, Harry Tepker

Other Faculty Publications

No abstract provided.

Policy Preference Change And Appointments To The Supreme Court Of Canada, Benjamin Alarie, Andrew Green

Osgoode Hall Law Journal

Canadian prime ministers appoint judges to the Supreme Court of Canada at their own discretion. This practice has been criticized as providing prime ministers with the ability to appoint judges whose policy preferences are regarded as politically congenial. We examine the Court's judgments in the post-Charter era to discern the apparent policy preferences of the judges. Our results suggest that the policy preferences of judges are not strongly associated with the political party of the prime minister and that their policy preferences shift over time in seemingly unpredictable ways. We discuss the implications of this analysis for possible reforms of …

Free From Decree, David Schoenbrod, Ross Sandler

Other Publications

No abstract provided.

Judges Judging Judicial Candidates: Should Currently Serving Judges Participate In Commissions To Screen And Recommend Article Iii Candidates Below The Supreme Court Level?, Mary Clark

Scholarly Articles in Law Reviews & Journals

In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below the Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below …

Human Rights Hero - Sandra Day O'Connor, Stephen Wermiel, Michael S. Greco

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

The Effects Of Booker On Inter-Judge Sentencing Disparity, Ryan W. Scott

Articles by Maurer Faculty

No abstract provided.

Against Textualism, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers' and drafters' intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How …

What's Left Of Solidarity? Reflections On Law, Race, And Labor History, Martha R. Mahoney

Articles

No abstract provided.

A Plea For Reality, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Legend has it that a long-ago Chief Justice of Texas said, “No judicial selection system is worth a damn.” This view has been all but proven by American experience; nothing else in American law matches this subject in terms of the volume of written debate and endless sweat spent working for change. The selection system for federal judges is unchanged but far from untroubled, and

the States have never used a common method . . . . [O]ne can identify almost as many different methods . . . as there are States in the Union . . . . Moreover, …

Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider what …

Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton

Faculty Scholarship

The independence of the judiciary is an enduring and defining objective of the legal profession. Law depends on judges to observe and enforce it. To secure such virtuous judges, they must be protected from retaliation by those who disapprove their decisions and prevented from receiving rewards from those who benefit by them. Those having the greatest stake in shielding judges from intimidation or reward are the profession that shares their dependence on public acceptance and respect. And that task of protecting judicial independence stands today at the very top of the agenda of the American legal profession.

Are Judges Overpaid?: A Skeptical Response To The Judicial Salary Debate, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

The public debate over the need to raise judicial salaries has been one-sided. Sentiment appears to be that judges are underpaid. But neither theory nor evidence provides much support for this view. The primary argument being made in favor of a pay increase is that it will raise the quality of judging. Theory suggests that increasing judicial salaries will improve judicial performance only if judges can be sanctioned for performing inadequately or if the appointments process reliably screens out low-ability candidates. However, federal judges and many state judges cannot be sanctioned, and the reliability of screening processes is open to …

What Do Federal District Judges Want?: An Analysis Of Publications, Citations, And Reversals, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

We report evidence from a dataset of federal district judges from 2001 to 2002 that district judges adjust their opinion-writing practices to minimize their workload while maximizing their reputation and chance for elevation to a higher court. District judges in circuits with politically uniform circuit judges are better able to predict what opinions will get affirmed by the circuit court, leading to higher publication rates and a higher affirmance rate. In contrast, district judges in circuits with politically diverse circuit judges are less able to predict the preferences of the reviewing circuit court panel, leading district judges to publish fewer …

Judicial Disciplinary Systems For Incorrectly Decided Cases: The Imperial Chinese Heritage Lives On, Carl F. Minzner

Faculty Scholarship

Local Chinese courts commonly use responsibility systems (mubiao guanli zeren zhi, zeren zhuijiu zhi) to evaluate and discipline judges. Judges receive sanctions under these systems for a wide range of behavior, such as illegal or unethical dealings with parties and lawyers, inappropriate courtroom behavior, and neglect of duty.

Many local court Chinese responsibility systems also discipline judges for simple legal error. Judges may face sanctions linked to the number of cases that are reversed on appeal, simply because the interpretation of law made by a higher court differs from that of the original trial judge. Sanctions include monetary fines and …

Clarence X?: The Black Nationalist Behind Justice Thomas's Constitutionalism, Stephen F. Smith

Journal Articles

The opinions of Justice Thomas reflect a jurisprudence that is uniquely his own. His well-known commitment to textualism and originalism combines with a weak commitment to stare decisis on constitutional questions. This often puts Thomas at odds with Justice Scalia and other Justices who are far more willing to defer to precedents with which they disagree. The most distinctive aspect of Thomas's jurisprudence, however, involves cases of particular concern to black Americans. In these cases, his originalism and textualism are powerfully supplemented by another -ism—namely, "black nationalism."

Throughout his tenure, Justice Thomas has repeatedly explored the implications of controversial rulings …

"But For The Grace Of God There Go I": Justice Thomas And The Little Guy, Nicole Stelle Garnett

Journal Articles

This Essay, prepared for a NYU Journal of Law and Liberty symposium on “The Unknown Justice Thomas,” challenges the oft-repeated criticism that Justice Clarence Thomas’s opinions reflect a lack of empathy for the less fortunate. The Essay argues that, on the contrary, Justice Thomas’s opinions are replete with expressions of concern for the “little guy,” which are frequently overlooked or misinterpreted. The Essay explores three themes reflecting this concern in Thomas’s opinions.

Federalist Society Panel Discussion: Judicial Selection, Federal And State, Meryl J. Chertoff, William K. Kelley, William P. Marshall, Harold F. See Jr., Diane S. Sykes

Journal Articles

This panel discussion, selected from The Federalist Society's annual National Lawyers Convention, addresses the issue of judicial selection versus election at both the federal and state level. Panelists consider what, if anything, can be done to repair the federal judicial appointment process and address the longstanding debate at the state level over election versus appointment of judges. Finally, panelists reflect on whether merit selection is the answer or whether it would surrender the last vestiges of democratic control over the judiciary to a special interest elite.

Regulating Discourtesy On The Bench: A Study In The Evolution Of Judicial Independence, Bruce Green, Rebecca Roiphe

Articles & Chapters

In this paper, we argue that the myth of the detached, rational judge, free from emotion runs the risk of undermining the quality of judging, obscuring the transparency of judicial decisions, and deterring the development of diverse judicial styles. We explore the history of the myth of the detached judge and how it made its way into rules of judicial conduct. By contextualizing this image of the judiciary, the article concludes that the rules of judicial conduct have come to embody an antiquated understanding of judicial independence and ought to be revised to reflect a more modern concept of the …

Cross-Examining Film, Jessica Silbey

Faculty Scholarship

The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …

Judging The Judges, Stefanie A. Lindquist, Frank B. Cross

Scholarship@WashULaw

The evaluation of judges, especially circuit court judges, has commanded increased attention, with the quantitative analyses of Stephen Choi and Mitu Gulati. However, the proper dimensions for the evaluation of judges remains much disputed. Critics have challenged Choi & Gulati’s scales for measuring judicial quality but have offered little that is positive that would improve measurement. The critics make philosophical challenges to whether the measures truly capture the qualities of judging we should desire, but they offer no measurement tools to improve on Choi and Gulati.

We hope to advance the theoretical and empirical evaluation by incorporating different scales for …

United States V. Leveto, Jennifer Steward

NYLS Law Review

No abstract provided.

An Examination Of Strategic Anticipation Of Appellate Court Preferences By Federal District Court Judges, Christina L. Boyd, James F. Spriggs

Scholarship@WashULaw

This Essay tackles the complicated relationships within the federal judicial hierarchy with a focus on the relatively understudied connection between the Supreme Court and district courts.

How Should We Study District Judge Decision-Making?, Pauline Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin

Scholarship@WashULaw

Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. Yet much of the existing empirical work on federal district courts has failed to take account of the setting in which those judges operate. Too often, empirical studies of the district courts rely on an implicit assumption that judging at the trial court level is fundamentally the same as judging at the appellate level. We argue that this approach is misguided, because the nature of district judges’ work is substantially different from that of appellate judges. For example, unlike in the typical appellate case, a district …

Reconceptualizing The Judicial Activism Debate As Judicial Responsibility: A Tale Of Two Justice Kennedys, Eric J. Segall

Faculty Publications By Year

The academic and political debate over judicial activism has been based on the overriding but patently false assumption that the Supreme Court’s performance can be measured by examining the results that it reaches in constitutional cases. When scholars and politicians equate judicial activism with judicial invalidation of the works of the political branches or the reversal of precedent, however, these commentators don’t reveal anything different than would a pure descriptive account of the Court’s decision and rationale. Moreover, the judicial activism debate is unhelpful because the ambiguous sources of constitutional interpretation cannot privilege fundamental baselines or generate consensus over correct …

The Legal And Constitutional Foundations For The District Of Columbia Judicial Branch, Steven M. Schneebaum

University of the District of Columbia Law Review

No abstract provided.