Judges Commons^™

Faithful Agency Versus Ordinary Meaning Advocacy, James J. Brudney

Faculty Scholarship

This Article contends that ordinary meaning analysis based on dictionaries and language canons cannot be reconciled with the faithful agent model. Fidelity to Congress as a principal entails fidelity to its lawmaking enterprise, not to words or sentences divorced from that enterprise. Congress has indicated that it does not value dictionaries as part of its lawmaking process, and it ascribes at most limited weight to language canons in that process. Further, Justices advocating ordinary meaning analysis too often use dictionary definitions, and language canons such as the rule against surplusage, the whole act rule, and ejusdem generis, in ways that …

Rethinking Critical Mass In The Federal Appellate Courts., Laura Moyer

Faculty and Staff Scholarship

This article draws from critical mass studies of gender in other political institutions to inform an application to the US Courts of Appeals. The results demonstrate the utility of considering court-level aspects of diversity. As mixed-sex panels become more common within a circuit, both male and female judges increasingly support plaintiffs in civil rights claims, though the magnitude of the effect is larger for women. The presence of a female chief judge is also positively associated with pro-plaintiff decisions by men and women in sex discrimination cases.

Foreword: Supreme Court Narratives: Law, History, And Journalism, James F. Simon

Articles & Chapters

No abstract provided.

Constructing Courts: Architecture, The Ideology Of Judging, And The Public Sphere, Allison Anna Tait

Law Faculty Publications

In several countries, governments have embarked on major building expansion programs for their judiciaries. The new buildings posit the courtroom as their center and the judge as that room’s pivot. These contemporary projects follow the didactic path laid out in Medieval and Renaissance town halls, which repeatedly deployed symbolism in efforts to shape norms. Dramatic depictions then reminded judges to be loyal subjects of the state. In contrast, modern buildings narrate not only the independence of judges but also the dominion of judges, insulated from the state. The significant allocation of public funds reflects the prestige accorded to courts by …

Senate Gridlock And Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

One crucial locus of gridlock is appointments to the United States Courts of Appeals, which have grown extremely contentious, as the circuits resolve disputes about controversial issues and can effectively be tribunals of last resort for designated areas. Continuous Republican and Democratic charges, recriminations, and divisiveness have roiled the process for decades. The bench constitutes 179 judgeships; however, seventeen remained vacant at President Barack Obama's second inauguration notwithstanding his pledge to end the "confirmation wars" by assiduously consulting senators. Laboring without ten percent of the appellate court members subverts prompt, inexpensive and fair case disposition and undermines citizen respect for …

Reconsidering Recusals: The Need For Requirements For When Not To Recuse, Mason E. Lowe

Faculty Publications

In the American judiciary system, it is imperative that judges act free of bias. Although this seems to be an easy-enough-to-understand theory, its practical application is not always so simple. As a result, there have been wide-ranging, unpredictable, and sometimes undesirable results. Others have noted the need for clearer recusal rules and guidelines. There have been various suggestions for how to improve or reform recusal rules, all of which note that there is a lack of standardized and predictable rules for when judges are required to recuse themselves. These previous suggestions have correctly identified the root of the problem and …

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

Scholarly Articles in Law Reviews & Journals

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …

First, Do No Harm: On Addressing The Problem Of Implicit Bias In Juror Decision Making, Jennifer K. Elek, Paula Hannaford-Agor

Faculty Publications

Courts have extremely limited opportunities to educate jurors about the pernicious effects of complex psychological phenom­ena like implicit bias and how these implicit forms of bias may distort jurors' interpretation of trial evidence. This article focuses on several of these interventions and the factors that may increase or undermine their effectiveness. Most Americans are aware of the existence of explicit bias and its effects on decision making generally, but implicit bias is still a relatively new concept about which many people in the justice system are unaware. The first section of this article discusses the difference between explicit bias and …

Rethinking The Principal-Agent Theory Of Judging, Rafael I. Pardo, Jonathan Remy Nash

Scholarship@WashULaw

This Essay offers new insights into understanding the relationship between higher and lower courts and responds to the extant literature that has characterized the relationship as one involving a principal and an agent. We challenge the underpinnings of the principal-agent understanding of judicial hierarchies and identify problems with the theory’s applicability in this context. While principals ordinarily select their agents, higher court judges usually do not select lower court judges. Moreover, while lower court judges may cast votes with an eye to the possibility of elevation to a higher court, the higher court judges who review the lower court’s decisions …

President John Adams And Four Chief Justices: An Essay For James F. Simon, R.B. Bernstein

NYLS Law Review

No abstract provided.

Two Great Leaders, L.A. Powe Jr.

NYLS Law Review

No abstract provided.

Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin

NYLS Law Review

No abstract provided.

The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux

NYLS Law Review

No abstract provided.

Essay:1 From The “No Spittin’, No Cussin’ And No Summary Judgment”2 Days Of Employment Discrimination Litigation To The “Defendant’S Summary Judgment A Rmed Without Comment” Days: One Judge’S Four-Decade Perspective, Hon. Mark W. Bennett

NYLS Law Review

No abstract provided.

Bringing Back Reasonable Inferences: A Short, Simple Suggestion For Addressing Some Problems At The Intersection Of Employment Discrimination And Summary Judgment, Hon. Bernice B. Donald, J. Eric Pardue

NYLS Law Review

No abstract provided.

Increasing Referrals To Small Claims Mediation Programs: Models To Improve Access To Justice, Heather Scheiwe Kulp

Cardozo Journal of Conflict Resolution

The justice system is in crisis. In 2011, 85% of Connecticut's family court cases had at least one self-represented litigant. In Massachusetts, 92% of parties appearing in housing cases are selfrepresented. New York saw self-representation in 97% of child support cases. Although judges and attorneys are learning to adapt to this new reality, the strain is felt strongly by bench and bar alike.

This article explores a service that many courts already offer-small claims mediation-and studies how courts may more effectively refer parties to such services. Specifically, this article identifies six primary models courts use to refer parties to small …

What If You Build It And No One Comes?: The Introduction Of Mediation To Russia, Kathryn Hendley

Cardozo Journal of Conflict Resolution

Russia joined the community of countries where disputes can legally be diverted to mediation in early 2011. Russian court officials and judges were optimistic that mediation would alleviate the nagging problem of overloaded dockets; however, initial experience has shown that Russian litigants are skeptical of mediation. The reasons for this skepticism are a complex mix of institutional disincentives and a lack of familiarity with alternative dispute resolution. The relatively low costs associated with going to court in Russia, measured in terms of money, time, and relational damage, have done little to encourage litigants to opt for mediation. The absence of …

Arbitration And The Future Of Delaware's Corporate Law Franchise, Brian Jm Quinn

Cardozo Journal of Conflict Resolution

On September 9, 2011, Skyworks Solutions, Inc. ("Skyworks") and Advanced Analogic Technologies Incorporation ("AATI") entered into a merger agreement. The agreement included an uncommon provision with respect to dispute resolution. In part, that provision stated, "the parties hereto agree that any and all disputes arising under or related in any way to this Agreement or the Transactions shall be resolved solely in arbitration before the Court of Chancery of the State of Delaware. " Until AATI later sought specific performance of the merger agreement via arbitration pursuant to that provision, little notice had been paid by outside observers to the …

The Pre-Session Recess, Peter L. Strauss

Faculty Scholarship

In the brief remarks following, I do not address the Burkean argument that practice has established the permissibility of recess appointments during the week-or-more adjournments of Congress that modern transportation modalities permit. We can perhaps let President Eisenhower’s recess appointments of Chief Justice Warren, Justice Brennan, and Justice Stewart stand witness to that understanding. Rather, I want to suggest flaws in the originalist analysis used by the Canning court and in the Senate’s ruse of meeting every three days over the winter period of 2011-12 that many take to place the January 4, 2012 recess appointments President Obama made to …

The Epistemological Trend In The Evolution Of The Law Of Expert Testimony: A Scrutiny At Once Broader, Narrower, And Deeper, Edward J. Imwinkelried

Georgia Law Review

The thesis of this Article is that we are moving toward a
fundamentally epistemological approach to determining
the admissibility of expert testimony. The first part of the
Article notes that while many Frye jurisdictions exempted
soft science and nonscientific expertise, the Daubert line of
authority mandates that like an epistemologist, a trial
judge examine knowledge claims by any expert. The
second part addresses the question of the breadth of the
judge's analysis. The second part points out that under

the marketplace and general acceptance tests, courts
sometimes conducted a global analysis and inquired
generally whether the discipline itself was recognized …