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Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

Scholarly Articles in Law Reviews & Journals

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

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 …

Lightened Scrutiny, Bert I. Huang

Faculty Scholarship

The current anxiety over judicial vacancies is not new. For decades, judges and scholars have debated the difficulties of having too few judges for too many cases in the federal courts. At risk, it is said, are cherished and important process values. Often left unsaid is a further possibility: that not only process, but also the outcomes of cases, might be at stake. This Article advances the conversation by illustrating how judicial overload might entail sacrifices of first-order importance.

I present here empirical evidence suggesting a causal link between judicial burdens and the outcomes of appeals. Starting in 2002, a …

Beyond Principal-Agent Theories: Law And The Judicial Hierarchy, Pauline Kim

Scholarship@WashULaw

This Essay critically examines the commonplace use by judicial politics scholars of principal-agent models to describe the federal judicial hierarchy. It argues that agency models are useful in highlighting certain aspects of the interaction between upper and lower courts - specifically, the existence of value conflicts and informational asymmetries - but that in other ways traditional principal-agent models fit poorly the relationship between the lower federal courts and the Supreme Court. As a consequence, these models tend to obscure important normative questions about the relationship between lower and upper courts, as well as to distort the role that law plays …

Law, Politics, And The Erosion Of Legitimacy In The Delaware Courts, Kent Greenfield

NYLS Law Review

No abstract provided.

American Academy Of Religion V. Napolitano, Margaret Laufman

NYLS Law Review

No abstract provided.

Congress, The Supreme Court, And Judicial Review: Testing A Constitutional Separation Of Powers Model, Stefanie A. Lindquist, Jeffrey A. Segal, Chad Westerland

Scholarship@WashULaw

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll-call votes to estimate support in the current …

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 …

Judge Thompson And The Appellate Court Confirmation Process, Carl W. Tobias

Law Faculty Publications

Judge 0. Rogeriee Thompson's appointment to the United States Court of Appeals for the First Circuit was an historic moment, as she became the tribunal's first African American member. The Senate confirmed her in five months on a 98-0 vote, more expeditiously than any of President Barack Obama's other appellate nominees. Indeed, Fourth Circuit nominee Judge Albert Diaz waited thirteen months for approval. The slow pace of judicial confirmation demonstrates that the charges and recriminations, the partisanship and the serial paybacks, which have infused appointments for two decades, remain. Judge Thompson's confirmation, accordingly, deserves celebration and recounting. It both illuminates …

Filling The Fourth Circuit Vacancies, Carl W. Tobias

Law Faculty Publications

Federal judicial selection has become increasingly controversial. Allegations and recriminations, partisan division, and incessant paybacks have accompanied the appeals court appointments process for decades. These phenomena were pervasive in the administration of President George W. Bush as well as in nominations and confirmations to the United States Court of Appeals for the Fourth Circuit, particularly with respect to judgeships assigned to North Carolina.

The protracted vacancies have eroded the Fourth Circuit's delivery of justice, as operating without the fifteen circuit judges whom Congress authorized has exacted a toll. Across two and a half recent years, the court functioned absent a …

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 …

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 …

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 …

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 …

Judicial Selection In Rhode Island: Assessing The Experience With Merit Selection: Response, Emily J. Sack

Law Faculty Scholarship

No abstract provided.