Permitting Voluntary Euthanasia And Assisted Suicide: Law Reform Pathways For Common Law Jurisdictions,
2016
Dalhousie University - Schulich School of Law
Permitting Voluntary Euthanasia And Assisted Suicide: Law Reform Pathways For Common Law Jurisdictions, Jocelyn Downie
Articles, Book Chapters, & Popular Press
End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences …
Judging The Social Sciences In Carter V Canada (Ag),
2016
Dalhousie University Schulich School of Law
Judging The Social Sciences In Carter V Canada (Ag), Jodi Lazare
Articles, Book Chapters, & Popular Press
This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith's careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system's use of social science evidence and expert witnesses, this paper suggests that Justice Smith's treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …
Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?',
2016
University of Michigan Law School
Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus
Articles
In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the …
The Long Shadow Of Bush V. Gore: Judicial Partisanship In Election Cases,
2016
Northwestern Pritzker School of Law
The Long Shadow Of Bush V. Gore: Judicial Partisanship In Election Cases, Michael S. Kang, Joanna M. Shepherd
Faculty Articles
Bush v. Gore decided a presidential election and is the most dramatic election case in our lifetime, but cases like it are decided every year at the state level. Ordinary state courts regularly decide questions of election rules and administration that effectively determine electoral outcomes hanging immediately in the balance. Election cases like Bush v. Gore embody a fundamental worry with judicial intervention into the political process: outcome-driven, partisan judicial decisionmaking. The Article investigates whether judges decide cases, particularly politically sensitive ones, based on their partisan loyalties more than the legal merits of the cases. It presents a novel method …
Confirm Judge Koh For The Ninth Circuit,
2016
University of Richmond
Confirm Judge Koh For The Ninth Circuit, Carl W. Tobias
Law Faculty Publications
On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals …
Electing Justice Roush To The Supreme Court Of Virginia,
2016
University of Richmond
Electing Justice Roush To The Supreme Court Of Virginia, Carl W. Tobias
Law Faculty Publications
In late April 2015, the Supreme Court of Virginia announced that Justice LeRoy F. Millette, Jr. would retire on July 31, 2015. Democratic Governor Terry McAuliffe expeditiously created an open process for tapping a worthy successor. At July’s conclusion, the Governor appointed Fairfax County Circuit Judge Jane Marum Roush, an experienced, consensus jurist. On a Sunday night, merely two days after Roush swore her oath of office, Republican General Assembly leaders proclaimed their caucuses’ intention to elect another individual, despite conceding that Roush was very qualified. During the August special session, this concerted GOP endeavor prompted a Republican senator to …
Introduction To Juries And Mixed Tribunals Across The Globe: New Developments, Common Challenges And Future Directions,
2016
Chicago-Kent College of Law
Introduction To Juries And Mixed Tribunals Across The Globe: New Developments, Common Challenges And Future Directions, Nancy S. Marder, Valerie P. Hans
Cornell Law Faculty Publications
This introduction to the special issue of Oñati Socio-legal Series describes the goals of the conference on Juries and Mixed Tribunals across the Globe, and identifies themes that emerged as jury scholars from all over the world examined different forms of lay participation in legal decision-making. The introduction focuses on common challenges that different systems of lay participation face, including the selection of impartial fact finders and the presentation of complex cases to lay citizens. The introduction and special issue articles also highlight new developments and innovative practices to address these challenges, including some tools, like decision trees, that remain …
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges,
2016
Loyola University Chicago, School of Law
Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan
Faculty Publications & Other Works
No abstract provided.
Differentiating Deference,
2016
University at Buffalo School of Law
Differentiating Deference, Anya Bernstein
Journal Articles
When an administrative agency’s interpretation of an ambiguous statutory term is challenged in court, the Chevron doctrine instructs judges to evaluate whether it is reasonable. But how does a court know reasonableness when it sees it? Here, I first show that reasonableness review is more complex than it might seem. Contrary to common images, for instance, courts do not determine a range of reasonable interpretations; and that is a good thing, because they are not competent to do so. Moreover, because traditional statutory interpretation approaches presume the existence of one correct meaning for a given word, they are not well …
A Demographic History Of Federal Judicial Appointments By Gender And Race: 1789-2016,
2016
University of Richmond
A Demographic History Of Federal Judicial Appointments By Gender And Race: 1789-2016, Jonathan K. Stubbs
Law Faculty Publications
This article briefly surveys the constitutional and statutory foundation for the creation of the federal judiciary. It also furnishes data, by sex and race, of the appointment of federal judges to courts of general jurisdiction during each presidential administration from September 24, 1789, through April 11, 2016. Thus, Part I describes the pace of diversification of the federal judiciary. While data regarding other attributes of judges (such as their socioeconomic status) exist, extensive analysis of such characteristics falls outside the parameters of this preliminary analysis. Nonetheless, the Article notes in passing that, since 1989, during each presidential administration, the majority …
The Republican Senate And Regular Order,
2016
University of Richmond
The Republican Senate And Regular Order, Carl W. Tobias
Law Faculty Publications
Now that the 114th Congress has reached the first session’s conclusion, the purported application of regular order to a major Senate constitutional duty—rendering advice and consent on presidential nominees—merits analysis. This evaluation illuminates serious deficiencies, which plagued 2015 confirmations. Especially important was the GOP’s failure to expeditiously suggest aspirants for White House consideration, and specifically failing to fill “judicial emergencies,” provide hearings and ballots swiftly, conduct floor debates when required rapidly, and confirm more than 11 judges all year. This obstruction has numerous deleterious consequences; the most significant, however, is not fulfilling the constitutional responsibility to proffer advice and consent …
Feminist Justice: Review Of Sisters In Law: How Sandra Day O'Connor And Ruth Bader Ginsburg Went To The Supreme Court And Changed The World, By Linda Hirshman,
2016
University of Richmond
Feminist Justice: Review Of Sisters In Law: How Sandra Day O'Connor And Ruth Bader Ginsburg Went To The Supreme Court And Changed The World, By Linda Hirshman, Corinna Barrett Lain
Law Faculty Publications
Like most good books, Sisters in Law has a number of strengths and also a few weaknesses. In this review, I briefly reflect on both, then turn to what struck me most about the book, the thing I’m still thinking about and struggling with: what it means to be an elite. The good, the bad, and the ugly (truth)—here is my reaction to Sisters in Law.
Confirming Judges In The 2016 Senate Lame Duck Session,
2016
University of Richmond
Confirming Judges In The 2016 Senate Lame Duck Session, Carl W. Tobias
Law Faculty Publications
In this piece, Professor Carl Tobias descriptively scrutinizes the nomination and confirmation regimes throughout the administration of President Barack Obama. The article critically evaluates selection finding that persistent Republican Senate obstruction resulted in the greatest number of unoccupied posts for the longest duration, briefly moderated by the 2013 detonation of the “nuclear option,” which constricted filibusters. Nevertheless, the article contends when the Grand Old Party (GOP) attained a chamber majority, Republicans dramatically slowed the nomination and confirmation processes after January 2015. Therefore, openings surpassed ninety before Congress is scheduled to reassemble. Because this dilemma erodes rapid, inexpensive, and equitable disposition, …
Justice Robert Utter, The Supreme Court Of Washington, And The New Judicial Federalism: Judging And Teaching?,
2016
University of Washington School of Law
Justice Robert Utter, The Supreme Court Of Washington, And The New Judicial Federalism: Judging And Teaching?, Robert F. Williams
Washington Law Review Online
This is an expanded version of a talk given at a conference in Seattle, Washington organized by Professor Hugh Spitzer, an accomplished state constitutional law scholar, to honor the contributions of Justice Robert Utter to the field of state constitutional law, both in Washington State and the nation.
Let Us Live With All The People,
2016
Distinguished Jurist in Residence, Roger Williams University School of Law
Let Us Live With All The People, Judith C. Savage
Roger Williams University Law Review
No abstract provided.
Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 9) (2016),
2016
Roger Williams University
Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 9) (2016), Roger Williams University School Of Law
RWU Law
No abstract provided.
From Principles To Rules: The Case For Statutory Rules Governing Aspects Of Judicial Disqualification,
2016
Osgoode Hall Law School of York University
From Principles To Rules: The Case For Statutory Rules Governing Aspects Of Judicial Disqualification, Jula Hughes, Philip Bryden
Osgoode Hall Law Journal
The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact- and context-specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for a judge to sit in a marginal case. This article explores statutory judicial disqualification regimes in the United States, Germany, and Quebec to gain insights into how statutory rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise …
Judicial Disqualification And Recusal In Criminal Cases,
2016
St. Mary's University
Judicial Disqualification And Recusal In Criminal Cases, Edward L. Wilkinson
St. Mary's Journal on Legal Malpractice & Ethics
The United States Supreme Court has recognized circumstances in which the probability of judicial bias requiring disqualification or recusal is “too high to be constitutionally tolerable.” At the same time, the Texas Constitution contains a number of provisions barring a judge from presiding over a case under specific circumstances, while statutes and procedural rules either disqualify a judge or require him or her to be recused. Thus, whether a particular judge may preside over a given criminal case may be questioned under the Due Process Clause, the Texas Constitution, statue, or the rules of procedure. This Article will examine the …
When Scalia Wasn't Such An Originalist,
2016
Touro Law Center
When Scalia Wasn't Such An Originalist, Michael Lewyn
Touro Law Review
No abstract provided.
The Founding Fathers Said I Am Not Subject To Term Limits,
2016
Touro University Jacob D. Fuchsberg Law Center
The Founding Fathers Said I Am Not Subject To Term Limits, Elias Arroyo
Touro Law Review
No abstract provided.
