Judges Commons^™

Are Damages Different? Bivens And National Security, Andrew Kent

Faculty Scholarship

Litigation challenging the national security actions of the federal government has taken a seemingly paradoxical form in recent years. Prospective coercive remedies like injunctions and habeas corpus (a kind of injunction) are traditionally understood to involve much greater intrusions by the judiciary into government functioning than retrospective money damages awards. Yet federal courts have developed and strictly applied doctrines barring Bivens damages actions against federal officials because of an asserted need to preserve the prerogatives of the political branches in national security and foreign affairs. At the same time, the courts have been increasingly assertive in cases involving coercive remedies, …

Foreword: The Confident Court, Jennifer Mason Mcaward

Journal Articles

Despite longstanding rules regarding judicial deference, the Supreme Court’s decisions in its October 2012 Term show that a majority of the Court is increasingly willing to supplant both the prudential and legal judgments of various institutional actors, including Congress, federal agencies, and state universities. Whatever the motivation for such a shift, this Essay simply suggests that today’s Supreme Court is a confident one. A core group of justices has an increasingly self-assured view of the judiciary’s ability to conduct an independent assessment of both the legal and factual aspects of the cases that come before the Court. This piece discusses …

Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain

Publications

No abstract provided.

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Law Faculty Publications

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …

An Empirical Method For Harmless Error, D. Alex Winkelman, David V. Yokum, Lisette C. Cole, Shelby C. Thompson, Christopher Robertson

Faculty Scholarship

Trials are often imperfect. When inadmissible evidence is introduced or the jury is incorrectly instructed, judges must determine whether the error was prejudicial or merely harmless. In making that assessment, judges resort to speculation about the counterfactual question of whether the error changed the outcome, compared to the decision of a properly informed and instructed jury. These decisions are likely colored by confirmation and status quo biases, along with “mental contamination” of the error itself. Even when appellate judges perform these analyses accurately, their decisions appear conclusory. Scholars and judges have roundly criticized this doctrine, but no solution has emerged. …

Filling The District Of Arizona Vacancies, Carl W. Tobias

Law Faculty Publications

The judicial vacancy crisis must end. The federal bench has experienced nearly a ten percent vacancy rate over an unprecedented four and a half-year period. The substantial number and protracted character of those openings have imposed numerous detrimental effects. These phenomena have delayed the scheduling of jury trials in many civil cases and even propelled termination of some litigation because the Speedy Trial Act requires that criminal matters have precedence. Indeed, the emergency designation has meant that some criminal proceedings were delayed in the Arizona District. The vacancy crisis places additional pressure on sitting judges, particularly the eight senior judges …

On Creativity In Constitutional Interpretation, Pierre Schlag

Publications

In the present article a particular aspect of constitutional interpretation will be considered. This aspect is called "creative" and involves retrieving the meaning of an object of interpretation. It is with regard to this particular aspect or moment of interpretation that creativity is often viewed as something to be avoided, to be shunned. If the task at hand is to "retrieve" some meaning, then the idea that this meaning can be created, in whole or in part, seems quite simply antithetical to the enterprise at hand. It suffices to note that many jurists and legal thinkers believe that interpretation as …

Justice Brennan And His Law Clerks, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Behind The U.S. Reports: Justice Brennan's Unpublished Opinions And Memoranda In New York Times V. Sullivan And Its Progeny, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The contributions Justice William J. Brennan Jr. made to free expression in general and the law of libel in particular are unquestioned. His opinion in New York Times Co. v. Sullivan and cases that followed established sturdy protection for critics of public officials and helped further the marketplace of ideas that is so important for public discourse. Justice Brennan wrote thousands of words about Sullivan and its impact that never appeared in published opinions, however. Often he was required to alter his writings to accommodate the views of other justices needed for a majority. Those unpublished opinions – and memoranda …

Magna Carta In Supreme Court Jurisprudence, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

Editor's Note: This article is adapted from "Magna Carta in Supreme Court Jurisprudence," which appears as Chapter 5 in Magna Carta and the Rule of Law, Daniel Magraw et al., eds., published by the American Bar Association in 2014.

Give Ghosts A Chance: Why Federal Courts Should Cease Sanctioning Every Legal Ghostwriter, Blake G. Tanase

Georgia Law Review

For decades, federal judges have punished attorneys who draft documents for pro se litigants. Meanwhile, many states and the American Bar Association have come to accept this practice as beneficial for low-income litigants and the legal system at large. The Second Circuit recently broke from the federal tradition and found that an attorney's so-called "ghostwriting"of litigation documents for pro se litigants was not sanctionable conduct. That court noted the changes taking place at the state level and rejected other federal courts' justifications for sanctioning legal ghostwriting, but did not elaborate as to why legal ghostwriting should be considered acceptable attorney …

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Faculty Publications By Year

No abstract provided.

Joint Works Under United States Copyright Law: Judicial Legislation Through Statutory Misinterpretation, Michael B. Landau

Faculty Publications By Year

No abstract provided.

Gen Ms 29 Harriet P. Henry Papers Finding Aid, Elizabeth Sistare

Search the General Manuscript Collection Finding Aids

Description:

Harriet Putnam Henry became Maine’s first woman judge in 1973. Her expertise was in marine law and coastal management. She also has an extensive civil service record, including advocacy for women judges and work with child abuse and child welfare. She was active with the Maine Humanities Council, where the Harriet P. Henry Center for the Book was named in her honor. The Papers consist of publications and writings of Henry and others.

Date Range:

ca. 1941-1995

Size of Collection:

0.75 ft

At What Is The Supreme Court Comparatively Advantaged?, R. George Wright

West Virginia Law Review

No abstract provided.

Administrative Judges And Agency Policy Development: The Koch Way, Ronald M. Levin

William & Mary Bill of Rights Journal

Among the creative contributions that the late Charles H. Koch, Jr., made to administrative law thinking was his exploration of the present and potential role of administrative judges as policymakers. Charles stood in firm opposition to recent trends that, in his view, had served to strengthen the policymaking role of administrative judges at the expense of agency heads. He insisted that ultimate control over the policy direction of a program should rest with the officials who have been appointed to administer that program. While adhering to this baseline, however, Charles gravitated over time toward a nuanced view that sought to …

Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl

Faculty Publications

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.

This Article proposes …

Naalj Membership Application And Questionnaire, Tiffany Bacon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Civil Justice Reform In Social Security Adjudications, Jeffrey S. Wolfe

Journal of the National Association of Administrative Law Judiciary

Part I of this Article explores the actions of the Social Security Administration over time, both as related directly to the role of the administrative law judge in the case management process and to the agency's management of the backlog crisis generally, examining the cultural environment of bureaucratic management that has, despite the passage of decades, failed to remedy a persistent animus between the agency and its cadre of administrative law judges to the public detriment. Part II next examines the core attributes of the managerial judge and contrasts this in Part III with the agency's handling of the backlog …

Fundamental Fairness, Judicial Efficiency And Uniformity: Revisiting The Administrative Procedure Act, Daniel F. Solomon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.