Judicial Systems
The New Pornography Wars
Julie Dahlstrom
Abstract The world’s largest online pornography conglomerate, MindGeek, has come under fire for the publishing of “rape videos,” child pornography, and nonconsensual pornography on its website, Pornhub. In response, as in the “pornography wars” of the 1970s and 1980s, lawyers and activists have turned to civil remedies and filed creative anti- trafficking lawsuits against MindGeek […]
Criminal Justice Citizenship
Daniel S. McConkie, Jr.
Abstract The American criminal justice system is fundamentally democraticand should reflect an ideal of citizenship that is equal, participatory, anddeliberative. Unfortunately, the outcomes of criminal cases are nowalmost always determined by professionals (prosecutors, defenseattorneys, and judges) instead of by juries. This overly bureaucratizedsystem of adjudication silences the voice of the people. A better systemwould strengthen […]
State Jurisdictional Independence and Federal Supremacy
Ann Woolhandler & Michael G. Collins
Abstract Federal Courts scholarship often focuses on access to federal courts for the decision of federal claims. At the same time, many Federal Courts scholars insist that state courts must hear federal causes of action, even when the lower federal courts are open to the same claims—the very federal courts regarded by such scholars as […]
Judicial Impartiality in an Empirical Era
Written By: Tigran W. Eldred
Abstract Response to Cassandra Burke Robertson, Judicial Impartiality in a Partisan Era The psychological dimensions of judicial impartiality is a topic of considerable interest, with a growing body of scholarship focused on the reasons judges often are unable to perceive their own biases. Professor Robertson’s article, Judicial Impartiality in a Partisan Era,4 makes a significant […]
Neither the Problem Nor the Solution Lies Solely with the Judiciary: Response to Robertson’s Judicial Impartiality in a Partisan Era
Melanie Kalmanson
Abstract Response to Cassandra Burke Robertson, Judicial Impartiality in a Partisan Era In Judicial Impartiality in a Partisan Era (“Professor Robertson’s Article”), Cassandra Burke Robertson focuses on the danger the judiciary faces as a result of “growing partisan polarization.” She should be applauded for bringing this problem to the forefront. Unquestionably, politically motivated attacks against the […]
Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes
Written by: Justin D. Levinson, Mark W. Bennett, & Koichi Hioki
Abstract American judges, and especially lifetime-appointed federal judges, are often revered as the pinnacle of objectivity, possessing a deep commitment to fairness, and driven to seek justice as they interpret federal laws and the U.S. Constitution. As these judges struggle with some of the great challenges of the modern legal world, empirical scholars must seek […]
A New Era for Judicial Retention Elections: The Rise of and Defense Against Unfair Political Attacks
Written by: Hon. Barbara J. Pariente & F. James Robinson, Jr.
Abstract The judicial-merit selection and retention system for appointing judges to the bench was designed to emphasize selection based on the judge’s qualifications and to minimize the influence of partisanship and politics in both the selection and retention process. Since 2010, increasingly strident and frequent political attacks on state supreme court justices facing judicial-merit retention […]
Interpreting the Supreme Court: Finding Meaning in the Justices’ Personal Experiences
Written by: Amy Howe
Abstract At his 2004 confirmation hearing, Chief Justice John G. Roberts Jr. famously compared the role of a Supreme Court Justice to that of a baseball umpire and promised “to remember that it’s my job to call balls and strikes.” Roberts likely intended this to mean that he would serve as a neutral arbiter of […]
Jonathan Remy Nash, Expertise and Opinion Assignment on the Courts of Appeals: A Preliminary Investigation
This Article examines the role of expertise in judicial opinion assignment and offers four contributions: First, this Article develops a general theory of opinion assignment on multimember courts. Second, this Article uses that theory to predict how expertise might influence opinion assignment. Third, because the theory advanced in this Article suggests that the courts of […]
Anne R. Traum, Using Outcomes to Reframe Guilty Plea Adjudication
The Supreme Court’s 2012 decisions in Lafler v. Cooper and Missouri v. Frye lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to the effective assistance of counsel and that plea outcomes are particularly […]
Kevin J. Lynch, The Lock-in Effect of Preliminary Injunctions
One important bias economists and psychologists have identified is the lock-in effect. The lock-in effect causes a decision maker who must revisit an earlier decision to be locked in to that earlier decision. The effect is particularly pronounced where the earlier decision led to the investment of resources that cannot be recovered. Although lock-in does […]
Charles Gardner Geyh, The Dimensions of Judicial Impartiality
Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This Article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when “we are all legal realists now,” perfect impartiality—the complete absence of bias or prejudice—is at most […]
F. Andrew Hessick & Jathan P. McLaughlin, Judicial Logrolling
In the federal judicial system, multiple judges hear cases on appeal. Although assigning cases to multiple judges provides a number of benefits, it also generates the potential for conflict. Because each judge has his own set of preferences and values, judges on appellate panels often disagree with each other. Judges currently resolve these disagreements by […]
Martin H. Redish & Matthew B. Arnould, Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a "Controlled Activism" Alternative
No problem generates more debate among constitutional scholars than how to approach constitutional interpretation. This Article critiques two representative theories (or families of theories), originalism and nontextualism, and offers a principled alternative, which we call “controlled activism.” By candidly acknowledging the judge’s creative role in constitutional lawmaking, controlled activism promises real limits on judicial discretion.
Scott G. Hawkins, Perspective on Judicial Merit Retention in Florida
This November, voters will decide whether to retain in office three justices of the Florida Supreme Court and fifteen judges of the district courts of appeal. This Essay explains the merit retention process and puts that process in historical context. It analyzes the challenges voters face in making decisions about whether to retain appellate court […]
Chad M. Oldfather, Joseph P. Bockhorst, Brian P. Dimmer, Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship
The increasing availability of digital versions of court documents, coupled with increases in the power and sophistication of computational methods of textual analysis, promises to enable both the creation of new avenues of scholarly inquiry and the refinement of old ones. This Article advances that project in three respects. First, it examines the potential for […]
Jacy Owens, A Progressive Response: Judicial Delegation of Authority to Federal Probation Officers
Federal probation officers supervise millions of offenders who must each comply with a multitude of probation conditions. These officers need enough flexibility to deal with the evolving needs of each offender, without having to clog the court system with repeated requests for modifications. Yet federal courts differ in the amount of discretionary authority they grant […]
Kathryn A. Kimball, Losing our Soul: Judicial Discretion in Sentencing Child Pornography Offenders
63 Fla. L. Rev. 1515 (2011)| | | | Child pornography offenders capitalize on the vulnerability of children and find pleasure in their victims’ humiliation. In United States v. Irey, the defendant sadistically raped, sodomized, and tortured more than fifty prepubescent girls and then broadcast this abuse across the Internet; yet the court characterized Irey […]
Stewart E. Sterk and Kimberly J. Brunelle, Zoning Finality: Reconceptualizing Res Judicata Doctrine in Land Use Cases
63 Fla. L. Rev. 1139 (2011)| | | ARTICLE :: Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen […]
Jonathan Witmer-Rich, Interrogation and the Roberts Court
63 Fla. L. Rev. 1189 (2011)| | | ARTICLE :: Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts […]
Jim Gash, The End Of An Era: The Supreme Court (Finally) Butts Out of Punitive Damages For Good
63 Fla. L. Rev. 525 (2011)| | | | INTRODUCTION :: It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple […]
Nelson Lund, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. City of Chicago
63 Fla. L. Rev. 487 (2011)| | | | INTRODUCTION :: Since the days of the Warren Court, conservatives have attacked “judicial activism.” Beginning with Judge Robert Bork’s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables. Critics now charge that conservative judges are activists, especially when they […]
Kevin M. Clermont, Sequencing the Issues for Judicial Decisionmaking: Limitations from Jurisdictional Primacy and Intrasuit Preclusion
63 Fla. L. Rev. 301 (2011)| | | | ABSTRACT :: This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, although the parties can control which issues they put before a judge, […]
Gregory C. Sisk, Lifting the Blindfold From Lady Justice: Allowing Judges to See the Structure in the Judicial Code
62 Fla. L. Rev. 457 (2010) | | | | ABSTRACT :: Two centuries ago, Chief Justice John Marshall wrote that “[w]here the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived.” Yet for more than half a century, Congress has forbidden judges […]
Dhammika Dharmapala, Nuno Garoupa & Joanna M. Shepherd, Legislatures, Judges, and Parole Boards: The Allocation of Discretion Under Determinate Sentencing
62 Fla. L. Rev. 1037 (2010) | | | | INTRODUCTION :: Criminal sentencing in the United States has undergone sweeping changes in recent decades. The most significant development in sentencing has been the reallocation of power away from judges and parole boards and towards legislatures. State legislatures have accomplished this reallocation of power by […]
Benjamin H. Barton, Against Civil Gideon (and for Pro Se Court Reform)
62 Fla. L. Rev. 1227 (2010)| | | | INTRODUCTION :: “Civil Gideon” is a short-hand name for a concept that has been the white whale of American poverty law for the last forty years-a constitutional civil guarantee to a lawyer to match the criminal guarantee from Gideon v. Wainwright. This Article argues that the […]
Usha Rodrigues, From Loyalty to Conflict: Addressing Fiduciary Duty at the Officer Level
61 Fla. L. Rev. 1 (2009) | | | | ABSTRACT :: Conflicts of interest are the quintessential agency cost-the constant, lurking danger that agents may seek their own personal gain, rather than the good of the corporation. Yet many corporate employees lack knowledge as to exactly what constitutes a conflict of interest. This ignorance […]
David A. Karp, Why Justice Thomas Should Speak at Oral Argument
61 Fla. L. Rev. 611 (2009) | | | | INTRODUCTION :: The oral argument before the United States Supreme Court in Morse v. Frederick began at 10:03 a.m. in typical fashion, like a high-speed game of chess. Forty-two seconds into the argument, Justice Anthony Kennedy cut off the advocate in mid-sentence. For the next […]
Honorable William H. Pryor Jr., The Perspective of a Junior Circuit Judge on Judicial Modesty
60 Fla. L. Rev. 1007 (2008) | | | | TEXT :: I appreciate the invitation to deliver the Dunwody Lecture this year, and I am grateful that this occasion has allowed me to visit, for the first time, one of the premier law schools in this Circuit and our nation. The Levin College of […]
Timothy Zick, Clouds, Cameras, and Computers: The First Amendment and Networked Public Places
59 Fla. L. Rev. 1 (2007) | | | | INTRODUCTION :: It seems to be a common assumption that physical places like parks, sidewalks, and public squares, and “cyber-places” like the Web, constitute separate locations of communication. In reality, however, the intersection and collision of these two spaces is imminent. In some respects it […]
Jeffrey L. Harrison, Trademark Law and Status Signaling: Tattoos for the Privileged
59 Fla. L. Rev. 195 (2007) | | | | INTRODUCTION :: The motivations for buying a good or service are highly complex. At the most basic level, people buy goods because of what the goods do or because of the aesthetic elements they embody. More technically, buyers derive utility from the “functional” quality of […]
Alexandra D. Lahav, The Law and Large Numbers: Preserving Adjudication in Complex Litigation
59 Fla. L. Rev. 383 (2007) | | | | ABSTRACT :: This Article describes the transfer of power to regulate tortfeasors from the legislature to private parties through the medium of the court system and proposes that instead of privatizing mass torts administration courts should humanize it. The federal courts are faced with large […]
The Honorable Rosemary Barkett, Dunwody Distinguished Lecture in Law: Judicial Discretion and Judicious Deliberation
59 Fla. L. Rev. 905 (2007) | | | | INTRODUCTION :: Thank you for the opportunity to deliver the Dunwody Distinguished Lecture in Law. It is an honor and a privilege to join the extraordinary list of those who have participated in this series of Lectures. Like Elliot and Atwood Dunwody, I am a […]
Sandra Day O'Connor, Remarks on Judicial Independence
58 Fla. L. Rev. 1 (2006) | | | | TEXT :: Dedication of the Lawton Chiles Legal Information Center, University of Florida, Levin College of Law, Friday, September 9, 2005 It is a great pleasure to be here at the University of Florida to dedicate the Lawton Chiles Legal Information Center. Your new building […]
Michael Richard Dimino, Sr., Counter-Majoritarian Power and Judges' Political Speech
58 Fla. L. Rev. 53 (2006) | | | | INTRODUCTION :: Judges and judicial candidates are regularly restricted in their political speech and association by two categories of ethical canons that have only recently come under constitutional examination: those that restrict the ways judges conduct their own campaigns, and those that restrict judges’ participation […]
Chad M. Oldfather, Remedying Judicial Inactivism: Opinions as Informational Regulation
58 Fla. L. Rev. 743 (2006) | | | | INTRODUCTION :: Concern about so-called “judicial activism” is rampant. Despite a lack of consensus regarding precisely what the term means, those wielding it have in mind judges who overstep the bounds of their role. “Activist” judges usurp the authority of the political branches, decide issues […]
Rhonda Wasserman, Tolling: The American Pipe Tolling Rule and Successive Class Actions
58 Fla. L. Rev. 803 (2006) | | | | ABSTRACT :: Timing is everything. Even the most meritorious lawsuit will be dismissed if the statute of limitations has run on the plaintiff’s claim. In class action litigation, this hurdle is particularly daunting. Supreme Court precedent makes clear that if a class action complaint is […]
Jason Marques, Florida Constitutional Law: Circumscribing Legislative Authority in The Absence of a Clear Prohibition
58 Fla. L. Rev. 957 (2006) | | | | TEXT :: The Opportunity Scholarship Program (OSP), a state-funded, parent- choice voucher system, was designed to provide private school scholarships to students enrolled in certain Florida public schools. Upon its enactment in 1999, Respondents assailed the OSP as facially defective under both the state and […]
Cary B. Davis, The Commerce Clause: Border Crossing + Church Burning = Interstate Commerce (A Formula for Federalizing Common Law State Crimes)
57 Fla. L. Rev. 975 (2005) | | | | TEXT :: Respondent, a practicing Luciferian from Indiana, drove his van south to Georgia where he set fire to five churches. One of the arsons resulted in the death of a volunteer firefighter. Respondent pleaded guilty in federal court to five counts of church arson […]
William N. Eskridge, Jr, Dunwody Distinguised Lecture in Law: Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion
57 Fla. L. Rev. 1011 (2005) | | | | TEXT :: The Supreme Court ruled in Lawrence v. Texas that states could not constitutionally criminalize private oral or anal sex between consenting adults. How far does the decision sweep? Is it limited to its facts, with no broader implications for constitutional law, as the […]
David Crump, The Narrow Tailoring Issue in The Affirmative Action Cases: Reconsidering the Supreme Court's Approval in Gratz and Grutter of Race-Based Decision-Making by Individualized Discretion
56 Fla. L. Rev. 483 (2004) | | | | INTRODUCTION :: The Supreme Court’s doctrine known as strict scrutiny is divided into two elements. First, there is the requirement that a State identify a “compelling governmental interest” that supports the state’s use of race as a factor. Second, and just as important, there is […]