Judges Commons^™

Sandra Day O’Connor’S "First" Principles: A Constructive Vision For An Angry Nation, Lisa Kern Griffin

Faculty Scholarship

During her 25-year tenure on the Supreme Court, Justice Sandra Day O’Connor cast the decisive votes to resolve the most emotional debates, yet she maintained collegiality among the Justices and retained the public’s high regard. A recent biography by historian and journalist Evan Thomas chronicles her extraordinary personal qualities, remarkable professional journey, and constructive brand of patriotism. This book review essay describes a legacy in three parts: a lived example of how to thrive in the face of challenges, a jurisprudence driven by the courage to make compromises, and a theory about the long game of American democracy. First reintroduces …

Empty Chairs, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Avoiding Judicial Discipline, Veronica Root Martinez

Faculty Scholarship

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and the rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into …

Faulty Forensics: Bolstering Judicial Gatekeeping In Georgia Courts, Miranda S. Bidinger

Georgia Law Review

Forensic evidence is widely used in criminal cases
across the country and is accorded great weight by
juries. But critics have begun to question its reliability.
Its use has contributed to numerous wrongful
convictions, and though some individuals have been
exonerated, many remain incarcerated for crimes they
did not commit.
This Note explores a variety of forensic science
disciplines and their associated problems, the recent
push for forensic reform, and the current standards
governing the admissibility of forensic evidence at the
federal level and in Georgia courts, highlighting the
lenient standard embodied in the Georgia Code and
elaborated upon in …

What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson

Faculty Scholarship

In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This …

National Security And Judicial Ethics: The Exception To The Rule Of Keeping Judicial Conduct Judicial And The Politicization Of The Judiciary, Joshua E. Kastenberg

Faculty Scholarship

This article is divided into three sections, and it incorporates original research from the personal correspondences of several judges and justices. This article includes unpublished correspondences from various judicial collections at the Library of Congress, the Bentley Historical Library at the University of Michigan, the Washington and Lee School of Law’s special collections, the Richard Nixon and Ronald Reagan Presidential Libraries, the National Library of Australia in Canberra, and Canada’s National Archives in Ottawa. The first section analyzes the current framework governing judicial disqualification based on the separation of powers doctrine as well as the right to an impartial judiciary, …

Covid, Crisis And Courts, Colleen F. Shanahan, Alyx Mark, Jessica K. Steinberg, Anna E. Carpenter

Faculty Scholarship

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade and we will return to more of the same. Whatever lies on the other side of …

Filling The California Federal District Court Vacancies, Carl W. Tobias

Law Faculty Publications

"President Donald Trump frequently argues that confirming federal appellate judges constitutes his quintessential success. The President and the Republican Senate majority have dramatically eclipsed appeals court records by appointing fifty-one conservative, young, and capable appellate court nominees, which leaves merely one vacancy across the country. Nonetheless, these approvals have imposed costs, especially among the plentiful district courts that address seventy-four openings in 677 judicial positions.

The most striking example is the four California districts, which realize seventeen pressing vacancies among sixty posts. The Administrative Office of the United States Courts (AO), the federal judiciary’s administrative arm, designates all of them …

Filling The Federal District Court Vacancies, Carl W. Tobias

Law Faculty Publications

"President Donald Trump’s major success has been confirming judges for the thirteen federal appellate courts. The President shattered records by appointing a dozen circuit jurists in his administration’s first year, eighteen judges over the course of 2018, and twenty additional judges throughout his third year. Indeed, by June 2019, the appeals courts experienced four vacancies in 179 judgeships and today, only one position remains empty. This achievement is critical, as these tribunals are the courts of last resort for nearly every appeal, and appellate court opinions articulate greater policy than district court rulings and cover multiple states.

However, that accomplishment …

Muted Justice, Leah Litman

Articles

The Chief Justice of the United States possesses significant power. His position as the senior most Justice on the U.S. Supreme Court allows him to assign opinions to other Justices and to coordinate scheduling the Court’s cases for argument. And after Justice Kennedy retired in June 2018, Chief Justice Roberts was the median Justice on the Court, whose vote often determined the outcome in a case. Even after Justice Barrett’s confirmation changed that state of affairs, the Chief remains an important Justice to watch.

The Handmaid Of Justice: Power And Procedure In The Inferior Courts, Kellen R. Funk

Faculty Scholarship

Summing up the history of procedure from the codification movement of the nineteenth century to the Federal Rules practice of today, Robert Bone observed, “Each generation of procedure reformers, it seems, diagnoses the malady and proposes a cure only to have the succeeding generation’s diagnosis treat the cure as a cause of the malady.” While playfully highlighting the contingencies and unexpected consequences of procedural history, Professor Bone was not advocating a cyclical view of history, in which “cost and delay” continually recur as the bugaboos of procedural reformers who can’t quite figure out how to solve the problem. Instead, Bone …

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. …

Complexity, Judgment, And Restraint, Gerard E. Lynch

Faculty Scholarship

I am honored to have been asked to give this year’s James Madison Lecture. I hesitate to single out any of my extraordinary predecessors at this podium – there are too many great judges to list, and too much risk of slighting any. So I will note only that the list includes both judges for whom I clerked more than forty years ago, Justice William J. Brennan, Jr., and Chief Judge Wilfred Feinberg, of the court on which I now serve. That long-ago law clerk could not have dreamed of being someday in a position once occupied by those two …

Paternity And The Quasi-Marital Child, The Honorable Diana Tennis

Child and Family Law Journal

No abstract provided.

The Separation Of Migrant Families At The Border Under The Trump Administration’S Zero-Tolerance Policy: A Critical Analysis Of The Mistreatment Of Immigrant Children Held In U.S. Custody, Dhillon Ramkhelawan

Child and Family Law Journal

This article provides a critical analysis of the Trump Administration’s zero-tolerance policy that separated migrant families at the Southwest United States border from April to June 2018. It will provide a statistical analysis regarding the number of migrant children that were separated from their parents during this time period, and it will describe the poor living conditions that many of these children were subjected to as they waited for their parent’s immigration cases to be decided. Additionally, this article will also critically analyze the United States’ history of mistreating migrant children who started to flee their war-torn countries in Central …

2020 Fellowship Topic Announcement, National Association Of Administrative Law Judiciary

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Combating Judicial Misconduct: A Stoic Approach, Michael D. Cicchini

Buffalo Law Review

Judicial ethics rules require criminal court judges to be competent, even-tempered, and impartial. In reality, however, many judges are grossly ignorant of the law, incredibly hostile toward the defense, and outright biased in favor of the state. Such acts of judicial misconduct pose serious problems for the criminal defense lawyer and violate many of the defendant’s statutory and constitutional rights.

This Article presents a framework for the defense lawyer to use in combating judicial misconduct. The approach is rooted in a principle of Stoic philosophy called “negative visualization.” That is, the lawyer should anticipate and visualize judicial incompetence, hostility, and …

Rethinking The Efficiency Of The Common Law, D. Daniel Sokol

Notre Dame Law Review

This Article shows how Posner and other scholars who claimed that common law was efficient misunderstood the structure of common law. If common law was more efficient, there would have been a noticeable push across most, if not all, doctrines to greater efficiency. This has not been the case. Rather, common law, better recast as a “platform,” could, under a certain set of parameters, lead to efficient outcomes. Next, the Article’s analysis suggests that while not every judge thinks about efficiency in decisionmaking, there must be some architectural or governance feature pushing in the direction of efficiency—which exists in some …

Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen

Faculty Publications

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case …

The Meaning Of Judicial Impartiality: An Examination Of Supreme Court Confirmation Debates And Supreme Court Rulings On Racial Equality, Stuart Chinn

Utah Law Review

Three years into the Trump presidency and especially in the aftermath of Justice Kavanaugh’s elevation to the Supreme Court, the ideal of judicial impartiality is once again central in our public discourse. Because we have, in turn, a president especially skeptical of the judiciary’s separation from partisanship, heightened political polarization, and heightened stakes around judicial rulings in this age of gridlocked governance, the question of how judges approach their work has assumed a significance that goes beyond concern over the outcomes they will reach.

However, as important as the concept of judicial impartiality may be, it is worth pausing to …