Judges Commons^™

Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore

All Faculty Publications

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …

Arguing With Friends, William Baude, Ryan D. Doerfler

Michigan Law Review

Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases.

Both positions are wrong. Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue for a different approach: A judge ought to give significant weight to the …

Recovering Wagner V. International Railway Company, Kenneth S. Abraham, G. Edward White

Touro Law Review

No abstract provided.

Palsgraf V. Long Island R.R.: Its Historical Context, William E. Nelson

Touro Law Review

No abstract provided.

Analyzing Justice Cardozo’S Opinions On The Constitutionality Of The New Deal, Robert J. Pushaw Jr

Touro Law Review

No abstract provided.

Judicial Mediation: From Debates To Renewal, Jean-François Roberge, Dorcas Quek Anderson

Cardozo Journal of Conflict Resolution

Judicial mediation involving a judge acting as a mediator in a court dispute has been implemented in many jurisdictions worldwide as a way to overcome access to justice challenges. This innovation has raised many debates on the changing role of the judge built on either its congruence with or divergence from judicial adjudication. Over the years, these debates have become increasingly stagnant. The evolving vision on access to justice brings an opportunity to draw from the earlier debates and forge a different way forward. This paper argues that a coequality approach to understanding judicial mediation is a better way to …

Are Advocates General Political? An Empirical Analysis Of The Voting Behavior Of The Advocates General At The European Court Of Justice, Jens Frankenreiter

Scholarship@WashULaw

The question whether political preferences of EU Member States play a role in the decision making of the members of the European Court of Justice (ECJ) has so far gone largely unanswered in the literature. This paper formally tests the hypothesis that the political preferences of Member State governments are reflected in the decisions of the Advocates General, who are judge-like members of the ECJ. The empirical analysis is motivated by a novel model of the interaction between the Advocate General and the judicial panel. It uses a newly assembled dataset combining information on agreements and disagreements between the opinions …

Public Confidence In The Courts In The Internet Age: The Ethical Landscape For Judges In The Post-Watergate Age, Carolyn A. Dubay

Campbell Law Review

Promoting and protecting public confidence in government institutions is central to continued faith in the rule of law. As a result, when personal scandals or internal failures threaten public trust in government institutions, policy makers have been quick to respond with new measures to increase accountability for misconduct. In the twentieth century, the Watergate scandal of the early 1970s led to significant changes in accountability for misconduct by high-level public officials and in the legal profession generally. For judges, in the years just prior to Watergate, high-profile scandals involving federal judges also led to significant changes in the regulation of …

Judging Well, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue …

The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional, Stephen N. Scaife

Law Student Publications

"State legislatures can indirectly, but effectively, restrict constitutional rights by enacting statutes that create a private cause of action. This is possible when the cause of action creates potential damages that are so severe as to de facto compel people and entities from engaging in certain conduct. For example, if a statute allows private citizens to sue a person when that person engages in X, then individuals and entities may cease to engage in X if the possible liability arising from engaging in X is too significant. When the United States Constitution protects the conduct that the statute de facto, …

Opting Out Of Discovery, Jay Tidmarsh

Journal Articles

This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …

Prosecution Of Child Pornography—The One-Eyed Judge By Michael A. Ponsor: A Book Review, Beth Cohen, Pat Newcombe

Faculty Scholarship

The safeguarding and protection of children in society is crucial. Yet, children remain a vulnerable population; they are abused, neglected, trafficked, and exploited in numerous ways. In his new book, The One-Eyed Judge, Michael Ponsor, Senior United States District Court Judge for the District of Massachusetts, Western Division, who has presided over numerous child pornography cases, explores the complexities and legal implications of child pornography and exploitation.

The “New” District Court Activism In Criminal Justice Reform, Jessica A. Roth

Articles

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals. It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article …

(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton

Publications

Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of …

The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley

Publications

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, …

Outlook For The New Supreme Court Term, Arthur S. Leonard

Other Publications

No abstract provided.

Table Of Contents

Touro Law Review

No abstract provided.

Cardozo, Andrew L. Kaufman

Touro Law Review

No abstract provided.

The Uncertainty Of Sun Printing, George M. Cohen

Touro Law Review

No abstract provided.

Benjamin Cardozo And The Death Of The Common Law, John C. P. Goldberg

Touro Law Review

No abstract provided.