Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court,
2011
Drexel University Earle Mack School of Law
Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf
Cornell Law Faculty Publications
In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …
Samantar And Executive Power,
2011
University of Georgia Law School
Samantar And Executive Power, Peter B. Rutledge
Scholarly Works
This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as “executive lawmaking.” While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …
Disrobing Judicial Campaign Contributions: A Case For Using The Buckley Framework To Analyze The Constitutionality Of Judicial Solicitation Bans,
2011
American University Washington College of Law
Disrobing Judicial Campaign Contributions: A Case For Using The Buckley Framework To Analyze The Constitutionality Of Judicial Solicitation Bans, Aimee Ghosh
American University Law Review
No abstract provided.
Revising Canada's Ethical Rules For Judges Returning
To Practice,
2011
Western University
Revising Canada's Ethical Rules For Judges Returning To Practice, Stephen Ga Pitel, Will Bortolin
Dalhousie Law Journal
It has recently become more common for retired Canadian judges to return to the practice of law This development raises an array of ethical considerations and potential threats to the integrity of the administration of justice. Although most codes of legal ethics contemplate the possibility of former judges returning to practice, the rules on this particular topic are dated, under-analyzed, and generally inadequate. This article reviews the Canadian ethical rules that specifically relate to former judges and identifies their shortcomings. In doing so, the authors consider, for comparative purposes, Canadian ethical rules directed at former public officers who return to …
The Impeachment Of The Judges Of The Nova Scotia
Supreme Court, 1787-1793: Colonial Judges, Loyalist
Lawyers, And The Colonial Assembly,
2011
University of Toronto
The Impeachment Of The Judges Of The Nova Scotia Supreme Court, 1787-1793: Colonial Judges, Loyalist Lawyers, And The Colonial Assembly, Jim Phillips
Dalhousie Law Journal
In 1790 the Nova Scotia House of Assembly passed seven "articles of impeachment" against two ofthe colony's Supreme Courtjudges, the firstattempt bya British North American assembly to remove superior courtjudges. Although the impeachment failed when the British government rejected the charges, it is noteworthy nonetheless. The product of a dispute between newly arrived loyalist lawyers and a local elite of "old inhabitants, " it was at one and the same time a political struggle between the Assembly and the executive branch, and one that involved concerns about judicial competence. The impeachment crisis also demonstrates the close links between the judiciary …
The Religious Liberty Of Judges,
2011
William & Mary Law School
The Religious Liberty Of Judges, Daniel R. Suhr
William & Mary Bill of Rights Journal
This Article begins by reviewing the government employee line of cases, starting with United Public Workers v. Mitchell in 1947.29 The first section concludes that the modified Pickering balancing test set forth in United States v. National Treasury Employees Union (NTEU) is the appropriate level of scrutiny for judicial conduct rules. The body of this Article reviews ways in which the four canons of the ABA Model Code of Judicial Ethics and official interpretations of and rulings regarding them limit the religious activities of judges. I conclude that numerous applications of the Model Code are unconstitutional infringements on judges’ First …
Supreme Court Of The United States, October Term 2011 Preview,
2011
Georgetown University Law Center
Supreme Court Of The United States, October Term 2011 Preview, Georgetown University Law Center, Supreme Court Institute
Supreme Court Overviews
No abstract provided.
Pliva V. Mensing And Its Implications,
2011
Georgetown University Law Center
Pliva V. Mensing And Its Implications, Brian Wolfman, Dena Feldman
Georgetown Law Faculty Publications and Other Works
The U.S. Supreme Court ruling in PLIVA Inc. v. Mensing will immunize generic drug manufacturers facing failure-to-warn claims from state-law liability, and may also have implications for preemption jurisprudence more generally, says attorney Brian Wolfman and co-author Dena Feldman in this BNA Insight. The authors analyze the ruling, and offer their views on the questions that PLIVA raises about the ongoing vitality of the presumption against preemption, the standard for determining ‘‘impossibility’’ preemption, and the propriety of deference to an agency’s views on preemption.
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination,
2011
United States Court of Appeals for the Seventh Circuit
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla
Michigan Journal of Race and Law
Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard …
The Antislavery Judge Reconsidered,
2011
University of Dayton
The Antislavery Judge Reconsidered, Jeffrey M. Schmitt
School of Law Faculty Publications
It is conventionally believed that neutral legal principles required antislavery judges to uphold proslavery legislation in spite of their moral convictions against slavery. Under this view, an antislavery judge who ruled on proslavery legislation was forced to choose, not between liberty and slavery, but rather between liberty and fidelity to his conception of the judicial role in a system of limited government. Focusing on the proslavery Fugitive Slave Act of 1850, this article challenges the conventional view by arguing that the constitutionality of the fugitive act was ambiguous; meaning that neutral legal principles supported a ruling against the fugitive act …
Judges Henry J. Friendly And Benjamin Cardozo: A Tale Of Two Precedents,
2011
Pace University
Judges Henry J. Friendly And Benjamin Cardozo: A Tale Of Two Precedents, David M. Dorsen
Pace Law Review
No abstract provided.
Judicial Interference With Effective Assistance Of Counsel,
2011
Pace University School of Law
Judicial Interference With Effective Assistance Of Counsel, Bennett L. Gershman
Pace Law Review
Probably the most damaging external impediment to a lawyer’s ability to render effective assistance to a client may come from the interference by the trial judge in counsel’s advocacy. A judge supervises the conduct of a trial but he is more than a mere umpire or moderator. A trial judge, by his rulings, questions, and comments, has an enormous capacity to affect the merits of a party’s case and thereby influence the verdict of the jury. To be sure, the basic requirement of a trial judge, both legally and ethically, is to be impartial in demeanor as well as in …
Chinese Judicial Culture: From Tradition To Modernity,
2011
Brigham Young University Law School
Chinese Judicial Culture: From Tradition To Modernity, Shen Deyong
Brigham Young University Journal of Public Law
Text of an address by the Hon. Justice Shen Deyong at the Brigham Young University Law School, October 21, 2009.
The Endorsement Factor,
2011
Benjamin N. Cardozo School of Law
The Kiyemba Paradox: Creating A Judicial Framework To Eradicate Indefinite, Unlawful Executive Detentions,
2011
Benjamin N. Cardozo School of Law
The Kiyemba Paradox: Creating A Judicial Framework To Eradicate Indefinite, Unlawful Executive Detentions, Samuel Chow
Cardozo Journal of International and Comparative Law
The article examines the Supreme Court's evolving role in reviewing detentions related to national security, particularly focusing on the writ of habeas corpus. It argues that while the Court has expanded habeas protections, significant limitations remain, especially in ordering release into the United States. The author contends that for habeas to be meaningful, courts must have the authority to grant "functional release," balancing individual liberty against executive powers. The analysis highlights key cases like Boumediene v. Bush, Munaf v. Geren, and Kiyemba v. Obama, which reveal the challenges in preventing indefinite detentions and the need for clearer …
The Judiciary In Political Transitions: The Critical Role Of U.S. Constitutionalism In Latin America,
2011
University of Illinois College of Law
The Judiciary In Political Transitions: The Critical Role Of U.S. Constitutionalism In Latin America, Nuno Garoupa, Maria A. Maldonado
Cardozo Journal of International and Comparative Law
This paper proposes a theory that explains how political transitions deal with incumbent judiciaries. We argue that a new political regime compares the benefit of reshaping the judiciary with loyal appointees against the political and economic costs of directly interfering, including the cost of international reputation. There are several forms of interventionism including court packing, court purging, and violence against the judiciary. We discuss political transitions in Europe and Latin American civil law jurisdictions through the lens of our theory. We argue that American constitutional influence plays a critical role. In addition, we provide a detailed analysis of the recent …
On The Difficulties Of Generalization - Pcaob In The Footsteps Of Myers, Humphrey's Executor, Morrison, And Freytag,
2011
Columbia Law School
On The Difficulties Of Generalization - Pcaob In The Footsteps Of Myers, Humphrey's Executor, Morrison, And Freytag, Peter L. Strauss
Cardozo Law Review
No abstract provided.
Rethinking Judicial Disqualification Based On Campaign Contributions: A Practical Critique Of Post-Caperton Proposals And A Call For Greater Transparency,
2011
University of Nevada, Las Vegas -- William S. Boyd School of Law
Rethinking Judicial Disqualification Based On Campaign Contributions: A Practical Critique Of Post-Caperton Proposals And A Call For Greater Transparency, Ryan M. Mcinerney
Nevada Law Journal
No abstract provided.
Paul Verkuil As Institution Builder: The Cardozo Story,
2011
Benjamin N. Cardozo School of Law
Paul Verkuil As Institution Builder: The Cardozo Story, Matthew Diller
Cardozo Law Review
No abstract provided.
Agency Independence After Pcaob,
2011
Vanderbilt University Law School
Agency Independence After Pcaob, Kevin M. Stack
Cardozo Law Review
No abstract provided.
