Judges Commons^™

The Physical-Emotional Distinction In Tort, Philip Petrov

Faculty Scholarship

Several legal scholars have recently argued that U.S. tort law’s physical-emotional distinction commits tort to the objectionable position of mind-body dualism, but they have not considered the distinction’s role as an aid to judicial cognition and decision-making. Drawing primarily on the law of negligent infliction of emotional distress, this essay argues that tort’s physical-emotional distinction is not a relic of mind-body dualism but a heuristic that judges have used to structure and simplify the difficult but unavoidable task of drawing lines between legally cognizable and non-cognizable harm. The analysis has at least three normative implications: (1) users of tort’s physical-emotional …

Abortion Politics And The Rise Of Movement Jurists, Robert L. Tsai, Mary Ziegler

Faculty Scholarship

This Article employs the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena.

In this Article, …

Major Questions About Presidentialism: Untangling The “Chain Of Dependence” Across Administrative Law, Jodi L. Short, Jed Handelsman Shugerman

Faculty Scholarship

A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation …

The Problem Of Extravagant Inferences, Cass Sunstein

Georgia Law Review

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a …

The Unwritten Norms Of Civil Procedure, Diego A. Zambrano

Northwestern University Law Review

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and …

Hung Out To Try: A Rule 29 Revision To Stop Hung Jury Retrials, Elijah N. Gelman

Northwestern University Law Review

How many times can a defendant be retried? For those facing hung jury retrials, it’s as many times as the government pleases. Double jeopardy prohibitions do not apply when juries fail to reach a verdict.

There is, theoretically, a built-in procedural solution to stop the government from endlessly retrying defendants. Rule 29 of the Federal Rules of Criminal Procedure allows judges to acquit defendants when “the evidence is insufficient to sustain a conviction.” Considering that a hung jury indicates the jurors could not agree on the sufficiency of the evidence, defendants facing hung jury retrials are prime candidates for this …

Judicial Fidelity, Caprice L. Roberts

Pepperdine Law Review

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …

What Roosevelt Did To Brown V. Board Of Education, Or Race And Court Packing, Jill M. Fraley

Scholarly Articles

Roughly one-third of American schools remain segregated. Scholars have offered a variety of explanations, mostly social and cultural, but sometimes legal, for why desegregation did not proceed effectively after Brown v. Board of Education. This Article articulates a less expected and previously undocumented cause: President Roosevelt's prior attempt at court packing slowed--even derailed--desegregation.

The story of what Roosevelt's court packing did to make the work of integration harder is a cautionary tale, particularly for those who want to alter the U.S. Supreme Court now in furtherance of a modern cause. The only reasonable route for reforming the Supreme Court must …

Is The Business Of The Court (Still) Business?, Jonathan Adler

Faculty Publications

The Roberts Court has long been characterized as a pro-business court, perhaps the most pro-business court in a century. Insofar as this alleged pro-business orientation is due to the Court’s Republican-appointed majority, President Trump’s appointments to the Supreme Court should have magnified the Court’s pro-business orientation. Yet there are reasons to question the general characterization of the Court as “pro-business” as well as the assumption that an increase in the Court’s Republican-appointed majority has increased any pro-business orientation. Quantitative analyses often fail to account for the relative importance of individual decisions, the broader, legal context in which the Court’s decisions …

Supplementing The Record: The Life And Career Of Judge Edmund L. Palmieri, Todd C. Peppers, Bridget Tainer-Parkins

Scholarly Articles

For approximately ninety years, lower federal court judges have hired law clerks to process the work of the courts. While the law clerks typically go on to successful careers as attorneys, law professors, government officials, and judges, it is rare that the former apprentices become so famous that their mentors are lost in their oversized shadows. This is the case, however, for former federal district court judge Edmund L. Palmieri. A highly respected jurist who sat in the Southern District of New York for over three decades, Palmieri has seemingly become the answer to the following trivial pursuit question: “What …

Foreword: A Tribute To Chief Justice Max Baer And His Legacy, Ken Gormley

Duquesne Law Review

The Honorable Max Baer -- Chief Justice of the Pennsylvania Supreme Court and a proud alumnus of Duquesne University Law School (now the Thomas R. Kline School of Law)-passed away unexpectedly on September 30, 2022, at age 74.1 It was several months shy of his 75th birthday and his planned retirement.

A Tribute To Chief Justice Max Baer, Debra Todd

Duquesne Law Review

We were all extremely saddened by the loss of our friend and colleague Chief Justice Max Baer. Max unexpectedly passed away at age seventy-four, three months before his scheduled retirement as Chief Justice of Pennsylvania. It was a tremendous loss for the Court and the entire Commonwealth.

My Reflections On Former Chief Justice Max Baer, Christine Donohue

Duquesne Law Review

Former Chief Justice Max Baer was a relative stranger to me when I joined the Supreme Court of Pennsylvania in January 2016. Although we were both members of the Pittsburgh legal community, our paths never crossed in the practice, and not being a family law lawyer, I never had occasion to appear before him while he served on the bench in Allegheny County. While we engaged with each other on occasion at various bar association and Supreme Court functions, those encounters only gave me the superficial impression that he was approachable and had strong views on matters that were important …

Reflections On The Legacy Of Chief Justice Max Baer, Kevin M. Dougherty

Duquesne Law Review

The sky carried a light-greenish hue. The thunder let out a gentle growl. Suddenly the lightning slammed, and harsh winds pounded the patio furniture into the pool. The host bellowed for all to seek shelter inside. Paralyzed with uncertainty, I instinctively reached for then-Justice Max Baer's arm to direct him to safety. He calmly responded in his monotone voice: "It's only a tornado, Kevin. If you're frightened, run into the house with the others. I'm drinking my wine. We don't get enough of them in Pittsburgh, and I would like to see one."

Wrestling With The Baer, David Wecht

Duquesne Law Review

Max Baer was one of a kind. A man of irrepressible energy, of great devotion to family, state, and country, of unstinting dedication to the law and the courts. I met Max not long after I moved back home to Pittsburgh in 1993, after I had practiced law in Washington, D.C., for several years. He was around fifteen years older than me, and he was already a greatly respected jurist, having been elected to the Court of Common Pleas in 1989. Max had been assigned to the family division, as was the general custom for new judges, and he had …

Chief Justice Baer -- "The Fighting Baer Judge", Sallie Updyke Mundy

Duquesne Law Review

I first met Max Baer and his lovely wife Beth in January 2004 while attending a Pennsylvania Bar Association meeting in Florida. The event was dinner at a car themed restaurant, and the venue included several authentic vintage cars. Then, Max was a newly elected Justice to the Pennsylvania Supreme Court, and I was there as a practicing attorney with my three young sons, ages six, four, and two. I recall Max's genuine interest in learning who I was and being introduced to my children. Max delighted in interfacing with my young sons, showing them the cars and telling them …

Baer On Election Law, P. Kevin Brobson

Duquesne Law Review

When I attended my first appellate judges conference in June 2010 as a newly seated Pennsylvania Commonwealth Court Judge, my wife Lauren and I had the pleasure of dining with then-Justice Max Baer and his wife Beth. Prior to that, Max and I had just one, brief conversation by telephone. We had never previously met in person. Wonderful friendships were formed during that dinner.

Chief Justice Max Baer And The Legitimacy Of Policy Courts, Thomas G. Saylor

Duquesne Law Review

It was with great pleasure that I watched my friend, Chief Justice Max Baer, orchestrate and preside over the Supreme Court of Pennsylvania's 300th Anniversary Symposium conducted at the Constitution Center in Philadelphia in May 2022. And now, going on a year after his untimely passing, it is a source of comfort to know that Max was able to relish this milestone event in the sunset of his life.

To Go Boldly, Betsy Ceraso

Duquesne Law Review

It was an honor and a privilege working for Chief Justice Max Baer, whom I and most others in our chambers referred to as "the Judge." As a jurist, the Judge came to the Supreme Court of Pennsylvania from the family court, and he brought with him an immediate and heartfelt sense of how the judicial system affects the vulnerable, particularly children. The Judge was the ever-dedicated public servant who thought it important not only to serve the people, but to give back by engaging with students and young lawyers to help shape the next generation of litigants and judges. …

Remembering Chief Justice Max Baer, Kim Berkeley Clark

Duquesne Law Review

When Max Baer was elected to the Allegheny County Court of Common Pleas in 1989, the Family Division was thought of as a place for new judges to be assigned and then leave as soon as possible. Judges and lawyers alike often characterized the work of the Family Division as less important than the work in other divisions because there are no jury trials, because of the high number of selfrepresented and unrepresented parties struggling to be heard, and due to the mistaken belief that rules were not followed.