Judges Commons^™

In The Absence Of Scrutiny: Narratives Of Probable Cause, Mitu Gulati, Jack Knight, David F. Levi

Faculty Scholarship

This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the "good faith" exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not …

Civil Rights For The Twenty-First Century: Lessons From Justice Thurgood Marshall's Race-Transcending Jurisprudence, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This Essay pays tribute to justice Thurgood Marshall's race-transcending vision of universal human dignity, and explores the importance of building cross-racial alliances to modern civil rights advocacy. justice Marshall's role as a "Race Man" is evident in much of his jurisprudence, where he fought for years to promote equal opportunity and equal justice. As an advocate for all marginalized people, justice Marshall viewed equal justice as transcending race, and this Essay suggests that the multi-racial coalition that supported President Obama aligns with Marshall's vision. The Essay evaluates the civil rights movement through the lens of Justice Marshall's equality analysis, and …

"Gray Zone" Constitutionalism And The Dilemma Of Judicial Independence In Pakistan, Anil Kalhan

Vanderbilt Journal of Transnational Law

Many countries exist in a "gray zone" between authoritarianism and democracy. For countries in this conceptual space--which is particularly relevant today given the halting path of change in the Arab world--scholars, judges, and rule of law activists conventionally urge an abstract notion of' judicial independence" as a prerequisite for successful democratic transition. Only recently, for example, Pakistan's judiciary was widely lauded for its "independence" in challenging the military regime. However, judicial independence is neither an all-or-nothing concept nor an end in itself. With the return of civilian rule in Pakistan, a series of clashes between Parliament and the Supreme Court …

Judging Identity, Carla Pratt

Faculty Articles

Identity matters when it comes to judging. It is important to have judges with intersecting subordinated identities on our courts because these judges contribute unique perspectives that can be different from judges lacking the lived experience of intersectionality. With the appointment of Justice Sonia Sotomayor to the United States Supreme Court came many questions, including one about whether her identity as a Latina would affect her decision making on the Court. The question is a legitimate one prompted by a statement Justice Sotomayor made in a speech several years prior to her nomination to the Court. In a lecture given …

The Reappearing Judge, Steven S. Gensler, Lee Rosenthal

Faculty Articles

No abstract provided.

Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum

Faculty Scholarship

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of …

The American Judicature Society And Judicial Independence: Reflections At The Century Mark, Charles G. Geyh

Articles by Maurer Faculty

A logical starting point in a symposium commemorating AJS at the century mark is with judicial independence – a sweeping topic with a complex architecture that gives structure to the AJS mission. The many and varied contributions that AJS has made to the administration of justice over the past one hundred years can best be understood and appreciated as means to further the overarching objective of promoting an independent and accountable judiciary.

The Dimensions Of Judicial Impartiality, Charles G. Geyh

Articles by Maurer Faculty

Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This Article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when "we are all legal realists now," perfect impartiality-the complete absence of bias or prejudice-is at most an ideal; "impartial enough" has, of necessity, become the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: a procedural dimension, in which impartiality affords parties a fair hearing; a political dimension, in which …

Justice Brennan: Legacy Of A Champion, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

Rehnquist's Fourth Amendment: Be Reasonable, Craig M. Bradley

Articles by Maurer Faculty

"The Fourth Amendment: Be Reasonable," is a chapter in a book, The Rehnquist Legacy, published by Cambridge University Press in 2006. The book is a comprehensive legal biography of the Chief Justice in which leading scholars examine his legacy in diverse areas of constitutional law, including criminal procedure. This chapter examines Rehnquist's voluminous Fourth Amendment jurisprudence. While Rehnquist has not authored any single path-breaking case in this area, the chapter shows his success, across the board, in achieving his stated goal of calling a halt to the pro-defendant rulings of the Warren Court in the criminal procedure area. However, Rehnquist …

The State Of Israel’S Constitution; A Comparison Of Civilized Nations, Mark Goldfeder

Scholarly Works

The art of constitution-making is never one-dimensional. In regard to the United States' model, it has recently been argued that "[d]espite the enormous literature on the critical period, including the foreign affairs imperatives behind the movement for reform, it is not fully understood that the animus behind the reform effort that culminated in the new Constitution was a desire to ensure that the United States would be in a position to meet its international commitments and thereby earn international recognition."' While there are obvious differences, and while this concept is perhaps of even greater importance and more poignantly felt for …

Localist Statutory Interpretation, Ethan J. Leib

Faculty Scholarship

This paper argues for more attention to citizens’ point of contact with our legal system within local courts – and makes an effort to conceptualize local judges as parts of local governments. Once the paper highlights the role of local courts within the constellation of local government, it offers an argument for why certain forms of "localist judging" are appropriate postures for local judges to take when confronted with hard cases of statutory interpretation. The paper explores the virtues of a type of "intrastate judicial federalism."

The Wages Of Crying Judicial Restraint, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, pre‐New Deal and post‐New Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate.

The first version of …

Tips For Capturing 2014 Federal Court Clerkships, Carl W. Tobias

Law Faculty Publications

Now is a perfect moment for analyzing 2014 clerkships because law students across the country have completed their productive summer employment and are poised to commence their final year. Below are ideas which could help aspirants secure those coveted positions that start during next August.

Suboptimal Social Science And Judicial Precedent, Ben Grunwald

Faculty Scholarship

No abstract provided.

Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel

Faculty Scholarship

This essay argues that federalism played a profoundly important role in the Supreme Court's decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy's opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a "muddle," as many have claimed, Justice Kennedy's analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.

Legitimacy And Lawmaking: A Tale Of Three International Courts, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

This article explores the relationship between the legitimacy of international courts and expansive judicial lawmaking. We compare lawmaking by three regional integration courts — the European Court of Justice (ECJ), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The ECJ is the most activist, but its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more …

A Tale Of Two Dauberts, Julie A. Seaman

Georgia Law Review

Under the Federal Rules of Evidence and Supreme
Court precedent, a single standard ostensibly governs the
admissibility of scientific and other expert evidence in
criminal and civil cases. Although Georgia has recently
become the forty-fourth state to adopt the Federal Rules of
Evidence, it has declined to adopt Daubert for criminal
cases and has retained the prior, more lenient, standard.
While many commentators view this approach as perverse,
this Article considers the possible virtues not only of
explicitly applying a separate rule to scientific evidence in
criminal cases but also of applying a less stringent rule to
such evidence. Based …

The Role Of The Judge In Non-Class Settlement, Howard M. Erichson

Faculty Scholarship

This commentary argues that judges lack the authority, as a general matter, to approve or reject non-class settlements. While judges overseeing mass litigation can set the stage for settlement by instituting phased discovery, scheduling bellwether trials, and other methods, they should respect the line between facilitation of settlement and control over settlement terms. The paper was presented in response to Judge Alvin Hellerstein’s and his special masters' account of their handling of the September 11 clean-up litigation.

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green

Faculty Scholarship

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …