Judges Commons^™

Judicial Activism And The Interpretation Of The Voting Rights Act, Luis Fuentes-Rohwer

Articles by Maurer Faculty

From the moment the U.S. Supreme Court first confronted the difficult constitutional questions at the heart of the Voting Rights Act, its posture has been one of deference. This posture has continued to this day. In contrast, the Court has interpreted the language of the Act dynamically, often in total disregard to the text of the law or the intent of Congress. But as this Article explains, the Roberts Court appears poised to unsettle this longstanding narrative. The Act is in serious constitutional danger. One way to explain this move on the part of the Court is by invoking the …

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Articles by Maurer Faculty

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Left, Right, And Center: Strategic Information Acquisition And Diversity In Judicial Panels, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

This paper develops and analyzes a hierarchical model of judicial review in multimember appellate courts. In our model, judicial panels acquire information endogenously, through the efforts of individual panelists, acting strategically. The resulting equilibria strongly resemble the empirical phenomena collectively known as "panel effects" – and in particular the observed regularity with which ideological diversity on a panel predicts greater moderation in voting behavior (even after controlling for the median voter's preferences). In our model, non-pivotal panel members with ideologies far from the median have the greatest incentive to acquire additional policy-relevant information where no one on a unified panel …

Samantar And Executive Power, Peter B. Rutledge

Vanderbilt Journal of Transnational Law

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 …

Specters Of Law: Why The History Of The Legal Spectacle Has Not Been Written, Peter Goodrich

Articles

The article examines the intersection of law, theology, and visual/performance elements, arguing that legal discourse often overlooks the significance of typography, imagery, and theatricality. It highlights how legal texts use formatting techniques like bold and italics to convey meaning and draws parallels with theological concepts, such as the duality of power and the role of images in governance. The analysis critiques the legal tradition for neglecting these performative aspects and emphasizes the need to recognize law as a theater that denies its own theatricality.

Economic Crisis And The Rise Of Judicial Elections And Judicial Review, Jed Handelsman Shugerman

Faculty Scholarship

Almost ninety percent of state judges today face some kind of popular election. This uniquely American institution emerged in a sudden burst from 1846 to 1853, as twenty states adopted judicial elections. The modern perception is that judicial elections, then and now, weaken judges and the rule of law. When judicial elections swept the country in the late 1840s and 1850s, however, the key was a new movement to limit legislative power, to increase judicial power, and to strengthen judicial review. Over time, judicial appointments had become a tool of party patronage and cronyism.

Legislative overspending on internal improvements and …

David Trager: Jurist, Jeffrey B. Morris

Scholarly Works

No abstract provided.

Why Judicial Disqualification Matters. Again., Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Implicit Bias And Immigration Courts, Fatma Marouf

Scholarly Works

This Article highlights the importance of implicit bias in immigration adjudication. After tracing the evolution of prejudice in our immigration laws from explicit "old-fashioned" prejudice to more subtle forms of "modem" and "aversive" prejudice, the Article argues that the specific conditions under which immigration judges decide cases render them especially prone to the influence of implicit bias. Specifically, it examines how factors such as immigration judges' lack of independence, limited opportunity for deliberate thinking, low motivation, and the low risk of judicial review all allow implicit bias to drive decisionmaking. The Article then recommends certain reforms, both simple and complex, …

Book Review. Louis D. Brandeis And The Making Of Regulated Competition, 1900-1932 By Gerald Berk, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

Unplugged - When Do Supreme Court Justices Need To Just Sit Down And Be Quiet?, Sonja R. West

Popular Media

This article looks at Supreme Court justices providing their opinions on various legal topics prior to resigning from the bench.

Supreme Court Of The United States, October Term 2010 Preview, Update: December 7, 2010, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

From One [Expletive] Policy To The Next: The Fcc's Regulation Of "Fleeting Expletives" And The Supreme Court's Response, Brandon J. Almas

Federal Communications Law Journal

After the broadcast of the 2003 Golden Globe Awards, during which the lead singer from U2 uttered an expletive on national television, the FCC revisited its prior policy on the use of expletives on the airwaves and declared, for the first time, that "fleeting expletives" are offensive according to community standards and are therefore finable. In a lawsuit filed in the Second Circuit Court of Appeals, Fox Television Stations, Inc. along with a number of other broadcasters argued that the FCC's new policy was arbitrary and capricious under the Administrative Procedure Act and unconstitutional under the First Amendment. The Second …

Justice Souter And The Civil Rules, Scott Dodson

Faculty Publications

Justice Souter’s recent retirement from the Court after nearly twenty years presents a unique opportunity to comment on his legacy. No doubt others will eulogize or castigate him for his membership in the Planned Parenthood v. Casey troika, but there is much more to the man and his jurisprudence. Indeed, the danger is that Justice Souter will be pigeonholed into one opinion, an opinion that he wrote early in his Supreme Court career, to the detriment of understanding the complex justice that he was. And what it finds is a justice deeply committed to the fair treatment of the litigants …

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Cornell Law Faculty Publications

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

Issue 1: Table Of Contents

University of Richmond Law Review

No abstract provided.

Fool Me Once, Shame On Me; Fool Me Again And You're Gonna Pay For It: An Analysis Of Medicare's New Reporting Requirements For Primary Payers And The Stiff Penalties Associated With Noncompliance, Brent M. Timberlake, Monica A. Stahly

University of Richmond Law Review

This article discusses the new requirements and the issues that currently face insurers, claimants, and attorneys in cases involving Medicare-eligible beneficiaries.

The Dictionary Is Not A Fortress: Definitional Fallacies And A Corpus-Based Approach To Plain Meaning, Stephen C. Mouritsen

BYU Law Review

No abstract provided.

Unfettered Discretion: Criminal Orders Of Protection And Their Impact On Parent Defendants, David Michael Jaros

Indiana Law Journal

The last two decades have witnessed an astonishing increase in the use of the criminal justice system to police neglectful parents. Recasting traditional allegations of neglect as criminal charges of endangering the welfare of a child, prosecutors and the police have involved criminal courts in the regulation of aspects of the parent-child relationship that were once the sole province of family courts. This Article explores the legal implications of vesting judges in these cases with the unfettered discretion to issue protective orders that criminalize contact between a parent and her child.I argue that procedures for issuing protective orders that were …