Judges Commons^™

Judicial Compliance In District Courts, Jens Frankenreiter, Daniel L. Chen

Scholarship@WashULaw

Public enforcement of law relies on the use of public agents, such as judges, to follow the law. Are judges motivated only by strategic interests and ideology, as many models posit, rather than a duty to follow the law? We use the random assignment of U.S. Federal judges setting geographically-local precedent to document the causal impact of court decisions in a hierarchical legal system. We examine lower court cases filed before and resolved after higher court decisions and find that lower courts are 29-37% points more likely to rule in the manner of the higher court. The results obtain when …

Revisiting America's Guardrails The Constitution And Democratic Erosion Symposium, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature proposes a menu of “guardrails” for shoring up democracy from backsliding or decline. Some see guardrails in society and culture, calling for rebuilding civic norms of tolerance. Others call for stricter rules in administering elections, to prevent undue influence. Others call for greater judicial intervention, tasking courts with striking down enactments that threaten the constitution or …

Nonpartisan Supreme Court Reform And The Biden Commission, Daniel Epps

Scholarship@WashULaw

Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars and lawyers, the Commission was charged with drafting a report that would describe and analyze historical and current debates about reforming the Court. The eventual report seemed to make few observers happy. It reached few firm conclusions on the legality of any reform proposals and even fewer conclusions on any …

Political Ideology And Judicial Administration: Evidence From The Covid-19 Pandemic, Kyle Rozema, Adam Chilton, Christopher Anthony Cotropia, David L. Schwartz

Scholarship@WashULaw

We study the effect of political ideology on the administration of the judiciary by investigating how the chief judges of federal district courts set courthouse policies in response to the COVID-19 pandemic. To do so, we use novel data on the geographic boundaries of federal courts and on the contents of pandemic orders. We account for state and local conditions and policies by leveraging district courts in states that have multiple judicial districts and that have courthouses in multiple counties, and we isolate the effect of chief ideology by using simulations that difference out unobserved district-level effects. We find no …

Filling Lower Court Vacancies In Congress' Lame Duck Session, Carl Tobias

Law Faculty Publications

In this midterm election year of 2022, the nation’s divided political parties are in a battle royale to win the exceedingly close Senate majority. One important explanation for the fight is that the party which assumes the next Senate majority will necessarily have considerable power to affect the confirmation of federal judges. For example, during Donald Trump’s presidency, Republicans controlled the Senate; therefore, the chief executive and the upper chamber proposed and confirmed fifty-four accomplished,
extremely conservative, young appeals court, and 174 district court, jurists. The Republican White House and Senate majority confirmed judges by rejecting or deemphasizing the rules …

Frenemy Federalism, Scott Bloomberg

University of Richmond Law Review

Federalism scholars have long been fascinated by the unique relationship between the federal government and states that have legalized marijuana. And with good reason. For the past fifty years, Congress has classified marijuana as a Schedule I drug under the federal Controlled Substances Act (“CSA”), deeming the drug to have a high potential for abuse and no accepted medical use. Congress’s aim in establishing Schedule I of the CSA was to “eliminate the market in Schedule I substances.” Thus, possessing, distributing, and manufacturing marijuana are federally illegal. Congress’s objective notwithstanding, over two-thirds of the states (and territories) have legalized marijuana …

Out Of Sight And Out Of Mind: Criminal Laws Disguised Moral Culpability Requirement, Andrew Ingram

University of Richmond Law Review

Last spring, the Supreme Court of the United States made a little-remarked constitutional ruling in Kahler v. Kansas. Upon casual inspection, Kahler looks like a doctrinal dead-end. The petitioner asked the Supreme Court to recognize a due process right for mentally ill defendants to raise the M’Naghten right-and-wrong test of insanity, and the Court said, “No.” The petitioner’s failure notwithstanding, Kahler is not a barren vine. On the contrary, it is heavy-laden with new doctrinal insights for criminal law scholars.

The case deserves a thorough look—not for what it can teach us about constitutional contentions that the Court has …

Unservice: Reconceptualizing The Utility Duty To Serve In Light Of Climate Change, Heather Payne

University of Richmond Law Review

Many facets of utility monopoly regulation are approaching a minimum of eight decades as part of our legal landscape. A bedrock principle of state utility regulation is the duty to serve, which demands that utilities provide nondiscriminatory service to all those within their geographic territory for the specific service for which they have been granted a monopoly. Within its exclusive territory, a utility is required “to serve all present and reasonably to be anticipated future users.” Each state has adopted some form of this for its regulated monopolies, although formulations differ. This Article argues that in light of climate change …

The Pain Of Paying Taxes, Gary M. Lucas Jr.

University of Richmond Law Review

With a few caveats, standard economic models assume that, from society’s perspective, the payment of a tax constitutes a costless transfer from the taxpayer to the government. The financial loss to the taxpayer is exactly offset by the financial gain to the government, which can use the resulting tax revenue for the benefit of its citizens. In other words, paying taxes forces taxpayers to forgo private consumption, but the resulting loss in utility can be counterbalanced by an increase in utility from government spending. In fact, if the government spends wisely on beneficial public goods that are undersupplied by private …

Judicial Retention Elections For State Appellate Judges: The Implications Of The Ballot-Access Cases, James Blumstein

Vanderbilt Law School Faculty Publications

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But …

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

"Better Too Much Than Not Enough": Women Of Color On The Federal Bench, Laura Moyer, Rorie Spill Solberg, Allison Harris

Faculty and Staff Scholarship

It is well established that the federal judiciary has been an overwhelmingly White and male institution since its creation and continues to be so today. Even as presidents of both parties have looked to diversify their judicial nominees, this has tended to result in the appointment of White women and men of color rather than women of color. Using data on the confirmed federal district and circuit court judges from presidents Clinton through Trump, we assess how the backgrounds of women of color nominated to the federal judiciary compare with those of other appointees. The results indicate that, compared to …

Robert Cover’S Call To Teaching And Journey To Judaism, Randy Lee

Touro Law Review

As a teacher, Yale law professor Robert Cover never “dazzled,” “zinged,” nor “entertained”; he just engaged his students on a journey to the real and true that ultimately invited them to become the best version of themselves. As a Jew, Professor Cover wore an oversized skull cap, covered himself in a multicolored prayer shawl, and studied from a huge Talmud. He also, however, made everyone around him feel valued and welcomed and swept them up in a faith Professor Cover saw as wondrous and life-changing. This essay considers what the life of Robert Cover can teach us about what it …

Robert Cover And Critical Race Theory, Gabriel J. Chin

Touro Law Review

Professor Robert Cover is recognized as a leading scholar of law and literature; decades after his untimely passing, his works continue to be widely cited. Because of his interest in narrative, he is credited as a contributor to the development of Critical Race Theory. This essay proposes that in addition to narrative, some of his other, substantive works about race were also important precursors to a more sophisticated appreciation of U.S. race relations. Professor Cover is also entitled to credit for understanding racism as a pervasive system, and one which went beyond Black and White.

Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber

Touro Law Review

We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …

Law And Literature In The Work Of Robert Cover, Tawia Ansah

Touro Law Review

This Article argues that although Robert Cover seems to discount the role and the practical efficacy of literary texts within the context of legal interpretation, Cover’s work nevertheless discloses an extensive exploration of literature and of literary interpretation to frame his own legal interpretive practices. This is particularly the case regarding the development of his theory of law’s violence. The Article attempts to show that a close reading of Cover’s interpretation of literary texts in the service of his legal analyses discloses a buried theme pursuant to the violence of law: the threshold concept, between law and not-law, of the …

How The First Paragraph Of Violence And The Word Killed The Law As Literature Movement, Brett G. Scharffs

Touro Law Review

No abstract provided.

Remembrance, Group Gripes, And Legal Frictions: Rule Of Law Or Awful Lore?, Aviam Soifer

Touro Law Review

The rise of groups that honor and seek to advance their particular imagined or real pasts has seemed increasingly dangerous in the years since Bob Cover’s death in 1986. This essay briefly examines the challenges such groups pose to Bob’s hope, and even his faith, that law and legal procedure could be bridges to more just worlds. It may not be ours to finish consideration of how to distinguish the Rule of Law from Awful Lore—both composed of exactly the same letters—but we should continue that task, with remembrance, even within our troubled world.

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies

Touro Law Review

Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …