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Law Matters -- Less Than We Thought, Daniel M. Klerman, Holger Spamann 2019 USC Law School

Law Matters -- Less Than We Thought, Daniel M. Klerman, Holger Spamann

University of Southern California Legal Studies Working Paper Series

In a pre-registered 2×2×2 factorial between-subject randomized lab experiment with 61 federal judges, we test if the law influences judicial decisions, if it does so more under a rule than under a standard, and how its influence compares to that of legally irrelevant sympathies. The judges were given realistic materials and a relatively long period of time (50 minutes) to decide a run-of-the-mill auto accident case. We find weak evidence for the law effect, stronger evidence that rules constrain more than standards, and no evidence of a sympathy effect. Unexpectedly, we find that judges were more likely to ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang 2019 University of Pennsylvania Law School

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with ...


Judicial Ethics: A New Paradigm For A New Era, Charles G. Geyh 2019 Indiana University Maurer School of Law

Judicial Ethics: A New Paradigm For A New Era, Charles G. Geyh

St. Mary's Journal on Legal Malpractice & Ethics

As the preamble to the Model Code of Judicial Conduct indicates, traditional notions of judicial ethics operate within a rule of law paradigm, which posits that the “three I’s” of judicial ethics—independence, impartiality, and integrity—enable judges to uphold the law. In recent decades, however, social science, public opinion, and political commentary suggest that appointed judges abuse their independence by disregarding the law and issuing rulings in accord with their biases and other extralegal impulses, while elected judges disregard the law and issue rulings popular with voters, all of which calls the future of the three I’s ...


Article Iii, Judicial Restraint, And This Supreme Court, Joseph S. Diedrich 2019 Husch Blackwell LLP

Article Iii, Judicial Restraint, And This Supreme Court, Joseph S. Diedrich

SMU Law Review

Article III of the U.S. Constitution establishes a federal judiciary with powers and functions separate and distinct from the other branches. During its October 2017 Term, the U.S. Supreme Court decided three cases that turned on an interpretation of Article III power: Patchak v. Zinke, Oil States Energy Services v. Greene’s Energy Group, and Gill v. Whitford.

This Article argues that in each of those three cases, a majority of the

Court coalesced around a unifying principle of judicial restraint. By “judicial restraint,” this Article refers to the principle that the judiciary should respect and defer to ...


Due Process Supreme Court Appellate Division Second Department, 2019 Touro College Jacob D. Fuchsberg Law Center

Due Process Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.


Due Process Supreme Court Appellate Division, 2019 Touro College Jacob D. Fuchsberg Law Center

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.


Due Process People V. Scott (Decided June 5, 1996), 2019 Touro College Jacob D. Fuchsberg Law Center

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.


Due Process Court Of Appeals, 2019 Touro College Jacob D. Fuchsberg Law Center

Due Process Court Of Appeals

Touro Law Review

No abstract provided.


Supreme Court Queens County, 2019 Touro College Jacob D. Fuchsberg Law Center

Supreme Court Queens County

Touro Law Review

No abstract provided.


Double Jeopardy, 2019 Touro College Jacob D. Fuchsberg Law Center

Double Jeopardy

Touro Law Review

No abstract provided.


Double Jeopardy Supreme Court Appellate Division Second Department, 2019 Touro College Jacob D. Fuchsberg Law Center

Double Jeopardy Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.


Double Jeopardy, 2019 Touro College Jacob D. Fuchsberg Law Center

Double Jeopardy

Touro Law Review

No abstract provided.


To Compare Or Not To Compare? Reading Justice Breyer, Russell A. Miller 2019 Washington and Lee University School of Law

To Compare Or Not To Compare? Reading Justice Breyer, Russell A. Miller

Russell A. Miller

Justice Breyer's new book The Court and the World presents a number of productive challenges. First, it provides an opportunity to reflect generally on extra-judicial scholarly activities. Second, it is a major and important - but also troubling - contribution to debates about comparative law broadly, and the opening of domestic constitutional regimes to external law and legal phenomena more specifically. I begin by suggesting a critique of the first of these points. These are merely some thoughts on the implications of extra-judicial scholarship. The greater portion of this essay, however, is devoted to a reading of Justice Breyer's book ...


Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz 2019 University of Wisconsin, Madison

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at ...


Overruling Mcculloch?, Mark A. Graber 2019 University of Marlyand, Baltimore

Overruling Mcculloch?, Mark A. Graber

Arkansas Law Review

Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism ...


M'Culloch In Context, Mark R. Killenbeck 2019 University of Arkansas, Fayetteville

M'Culloch In Context, Mark R. Killenbeck

Arkansas Law Review

M’Culloch v. Maryland is rightly regarded as a landmark opinion, one that affirmed the ability of Congress to exercise implied powers, articulated a rule of deference to Congressional judgments about whether given legislative actions were in fact “necessary,” and limited the ability of the states to impair or restrict the operations of the federal government. Most scholarly discussions of the case and its legacy emphasize these aspects of the decision. Less common are attempts to place M’Culloch within the ebb and flow of the Marshall Court and the political and social realities of the time. So, for example ...


The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson 2019 University of Texas, Austin

The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson

Arkansas Law Review

All legal “interpretation” involves confrontation with inherently indeterminate language. I have distinguished in my own work between what I call the Constitution of Settlement and the Constitution of Conversation. The former includes those aspects of the Constitution that do indeed seem devoid of interpretive challenge, such as the unfortunate assignment of two senators to each state or the specification of the terms of office of representatives, senators, and presidents. I am quite happy to concede that “two,” “four,” and “six” have determinate meaning, though my concession is not based on a fancy theory of linguistics. It is, rather, a recognition ...


Mcculloch At 200, David S. Schwartz 2019 University of Wisconsin, Madison

Mcculloch At 200, David S. Schwartz

Arkansas Law Review

March 6, 2019 marked the 200th anniversary of the Supreme Court’s issuance of its decision in McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the United States, the successor to Alexander Hamilton’s national bank. McCulloch v. Maryland involved a constitutional challenge by the Second Bank of the United States to a Maryland tax on the banknotes issued by the Bank’s Baltimore branch. The tax was probably designed to raise the Second Bank’s cost of issuing loans and thereby disadvantage it relative to Maryland’s own state-chartered banks. Marshall’s opinion famously rejected the ...


Copyright, Fair Use, And Religious Liberty, Samuel Courtney 2019 University of St. Thomas, Minnesota

Copyright, Fair Use, And Religious Liberty, Samuel Courtney

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Raising The Bar: Law Clerks Pay Tribute To Judge Adkins, Monica Basche, Michael Collins Jr. 2019 University of Maryland Francis King Carey School of Law

Raising The Bar: Law Clerks Pay Tribute To Judge Adkins, Monica Basche, Michael Collins Jr.

Maryland Law Review

No abstract provided.


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