McKoski on David Davis, Abraham Lincoln's Favorite Judge

Ray McKoski, University of Illinois, Chicago, School of Law, has published David Davis, Abraham Lincoln's Favorite Judge (University of Illinois Press, 2025) Book sections - Introduction and Biographical Sketch of David Davis. Here is the abstract.

David Davis, Abraham Lincoln’s Favorite Judge explores two aspects of Judge David Davis’s interesting and important life. First, the book traces Davis’s unmatched contribution to the political rise of Abraham Lincoln. Davis’s unbreakable loyalty to Lincoln forged while they traveled the central Illinois court circuit, their shared Whig origins, Davis’s voluminous political and personal contacts, his organizational skills, and as Lincoln put it, Davis’s knack “of making a man do a thing whether he wants to or not,” all combined to make the judge Lincoln’s strongest and most effective political supporter. In evaluating Davis’s role in Lincoln’s assent to the presidency, the book engages in a long overdue examination of the professional and personal relationship between the two friends. Second, the book details Davis’s vital contribution to the fabric of the legal system—impartiality on the bench. Off the bench Davis left no stone unturned in advancing the political career of Lincoln and made no secret of his personally held “fixed opinions” on subjects such as Democrats, temperance, and abolitionists. In court, however, Judge Davis set aside his beliefs and relationships and rendered decisions free from personal, political, and social views; friendships; public pressure; and partisan loyalties. Even Davis’s sharpest critics on the political front acknowledged his judicial impartiality and honesty. And Davis’s independence was on full display after Lincoln appointed Davis to the U.S. Supreme Court. To the disdain of Republicans, in Ex parte Milligan Davis disallowed the use of military commissions created by President Lincoln to try civilians in non-seceding states in which the courts were open. Then in Railroad Company v. Catharine Brown, Davis rejected the argument that “separate but equal” passenger cars complied with the railroad’s congressional charter. Davis found that segregated cars were prohibited as a “badge of slavery.” Twenty-three years later in Plessey v. Ferguson, the Supreme Court would ignore Davis’s reasoning and uphold the separate but equal doctrine.

The extracts are not available from SSRN.

Tsai and Ziegler on Abortion Politics and the Rise of Movement Jurists @robertltsai @BU_Law @maryrziegler @UCDavisLaw

Robert L. Tsai, Boston University School of Law, and Mary Ziegler, University of California, Davis, School of Law, are publishing Abortion Politics and the Rise of Movement Jurists in volume 57 of the UC Davis Law Review. Here is the abstract.

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, we focus on one type of judge that is ascendant in the current constitutional moment: the movement jurist. Although movement judges are not new, they are more visible and influential today than in recent years. In fact, identifying this kind of figure—who is already shaped by movement beliefs or shares social experiences making such a person open to non-establishment constitutional perspectives—has emerged as a visible supplement to older methods of entrenching mobilized legal knowledge and political beliefs. By peering behind the Dobbs decision and offering fresh context, we present a new set of analytical terminology for understanding the touchpoints between law, institutions, and politics. Along the way, we offer a corrective to what are often uncritical calls for more movement jurists. Judging involves its own institutional imperatives and purposes, many of which are at odds with social activism. There are reasons why we might want judges under certain circumstances to pay attention to movements, and we discuss what some of those institution-enhancing and constitution-interpreting reasons might be. But there are risks as well. Movement judges need not be committed to any particular vision of justice or democracy or even interpretive methodology—as Dobbs plainly shows, it is more accurate to identify movement judges by their constitutional politics and social networks rather than by ideology or party loyalty. We describe the characteristics of movement judges so their legal output can be evaluated with this crucial context in mind. Adopting a historical and institutional perspective, we point to some benefits that can come from having the occasional movement figure join the judiciary. But we also offer some words of caution about corresponding tradeoffs when too many movement figures appear within a single organization like the Supreme Court.

Download the article from SSRN at the link.

Romero on How Judges "Ruin" Victims at Sentencing @MaybellRomero @TulaneLaw @GeorgetownLJ

Maybell Romero, Tulane University Law School, is publishing 'Ruined' in the Georgetown Law Journal. Here is the abstract.

Judges play a critical role in one of the most important states of a criminal case’s adjudication—sentencing. While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants. This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.” The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing. In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment. However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article also considers how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing. I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.

Download the article from SSRN at the link.

Oseid on Judge John T. Noonan Jr. and Writing With Empathy to Prove That the Human Person Is Central to the Law

Julie A. Oseid, University of St. Thomas School of Law (Minnesota), is publishing I See You: Judge John T. Noonan, Jr. Writing with Empathy to Prove that the Human Person is Central to the Law in the University of St. Thomas Law Journal (2021). Here is the abstract.

Long before he became a judge, Judge John T. Noonan, Jr. recognized and highlighted “the central place of the human person in any account of the law.” One of his intellectual legacies as a federal circuit court judge was recognizing the persons, not masks, who appeared before him. How did he do it? Empathy. Judge Noonan’s capacity for empathy as a judge extended beyond his ability to step into the shoes of someone whose life was very different from his own—he was able to write about that person’s encounter with the law in a way that makes you, the reader, also relate to the person with empathy. This article focuses on Judge Noonan’s opinions in three areas of law spanning three decades: civil rights, employment, and criminal law. Judge Noonan believed that you cannot love someone you cannot see. I will focus on how the details of his judicial writing—word choice, concision, and narrative techniques—furthered his philosophy of respecting the dignity of every human. He saw them. We do, too.

Download the article from SSRN at the link.

Wasserman on Academic Feeder Judges @fiulaw

Howard Wasserman, Florida International University College of Law, has published Academic Feeder Judges as Florida International University Legal Studies Research Paper No. 20-02. Here is the abstract.

This paper identifies “academic feeder judges”—the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and the judges who “produce” law professors from the ranks of their former clerks. The study is based on a summer 2019 review of publicly available biographies and c.v.’s of full-time faculty at ABA-accredited law schools, identifying more than 3000 “academic former clerks” and the judges for whom each clerked. From this, the paper identifies: 1) 101 lower federal judges with the most academic former clerks, 2) 52 federal trial judges, 3) 53 federal judges appointed since 1995, 4) top state-court judges, and 5) SCOTUS justices, current and past. For each judge within each grouping, the study examines appointing presidents, biographical information such as former career, numbers of academic former clerks, rankings of the schools at which former clerks teach, and a projection of how many academics newer judges might produce over a 35-year judicial career. The study closes with some comments and conclusions from the data. (Spoiler alert: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed closely by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), and Dorothy Nelson (Ninth Circuit)).

Download the article from SSRN at the link.

Murrell on How the Independence of Judges Reduced Legal Development in England, 1600-1800 @UofMaryland

Peter Murrell, Department of Economics, University of Maryland, has published The Independence of Judges Reduced Legal Development in England, 1600-1800. Here is the abstract.

Conventional wisdom on English development confers iconic status on the clause of the Act of Settlement (1701) that mandated secure tenure for judges. Because the Act's effect on tenure was partial, the effect of tenure on judicial decisions can be identified. The paper estimates how the awarding of tenure changed the number of citations to judges' decisions, a measure of judicial quality. The empirics uses two new databases, one on judges' biographies and one recording citations in the English Reports to earlier decisions. Several strategies aid identification. A court-year panel permits difference-in-differences. Controls capture judges' human capital and the importance of litigation. Instrumental-variable estimates use judge life-expectancy and political vicissitudes as instruments. Tenure has a strong, significant, and deleterious effect on the quality of associate-judge decisions. Tenure has no effect for chief judges. The Act of Settlement reduces citations by 20% in the 18th century. The results are interpretable in terms of the incentives provided by a powerful legal profession that could protect vulnerable judges in a politically volatile era.

Download the article from SSRN at the link.

Bam on Defending Judicial Speech @UMaineLaw

Dmitry Bam, University of Maine School of Law, has published Seen and Heard: A Defense of Judicial Speech at 11 Liberty U. L. Rev. 765 (2018). Here is the abstract.

Judicial ethics largely prohibits judges from engaging in political activities, including endorsing or opposing candidates for public office. These restrictions on judicial politicking, intended to preserve both the reality and the appearance of judicial integrity, independence, and impartiality, have been in place for decades. Although the Code of Conduct for United States Judges does not apply to the Supreme Court, Supreme Court Justices have long followed the norm that they do not take sides, at least publicly, in partisan political elections. And while elected state judges have some leeway to engage in limited political activities associated with their own candidacy, the Justices of the United States Supreme Court have consistently remained on the sidelines in contested partisan elections. That is why the events of July 2016 were so surprising. With the 2016 presidential election less than four months away, Supreme Court Justice Ruth Bader Ginsburg shocked everyone when she bluntly spoke out against the Republican presidential nominee, and the ultimate winner of the election, Donald Trump. On multiple occasions, she expressed her disdain for Trump in no uncertain terms, calling Trump a "faker," criticizing Trump's failure to release his tax returns, and even joking that her husband would have suggested moving to New Zealand if Trump were to be elected president. Given the ethical rules and the long-standing norms of judicial behavior, these were jarring statements from a sitting Supreme Court Justice. Immediately, there was a near-unanimous outcry against the propriety of Ginsburg's comments, ultimately leading her to apologize. The chorus of critics included both conservative and reliably leftist pundits, media commentators, legal academics, numerous politicians, and Donald Trump himself. It was not just conservatives who rebuked her statements. Despite her near-mythical status in progressive circles, among the critics were some of Justice Ginsburg's biggest supporters. In an election that saw little bipartisan agreement on almost anything, nearly everyone seemed to agree that Justice Ginsburg's statements violated ethical rules and norms. This Article examines whether Ginsburg's many critics were right. I suggest that the norms may be built on a shaky foundation and grounded in long-abandoned myths about the judicial role and judicial decision-making. The traditional restraints on Supreme Court Justices expressing their own strongly-held political views does not further, or at least does not significantly further, any of the important goals generally served by the ethics codes. While Justice Ginsburg's comments, and comments like hers, may change the way the people view the Court and its Justices, their mere utterance causes little damage to the reputation and standing of the federal judiciary generally, or the Supreme Court in particular. In addition, stifling judicial speech disserves the American people by misleading them about judges and judging and concealing potentially important heuristic information from the electorate.

Download the article from SSRN at the link.

Boatright on The History, Meaning, and Use of the Words Justice and Judge @StMarysLJ

Newly published:

Jason Boatright, Texas Fifth Circuit Court of Appeals, The History, Meaning and Use of the Words Justice and Judge, 49 St. Mary's Law Journal 727 (2018).

Judges, Judging [,] and Humour: A New Publication from Palgrave @Palgrave_

New from Palgrave Macmillan: Judges, Judging and Humour (Jessica Milner Davis and Sharyn Roach Anleu, eds., 2018). Here is the description of the book's contents from the publisher's website.

This book examines social aspects of humour relating to the judiciary, judicial behaviour, and judicial work across different cultures and eras, identifying how traditionally recorded wit and humorous portrayals of judges reflect social attitudes to the judiciary over time. It contributes to cultural studies and social science/socio-legal studies of both humour and the role of emotions in the judiciary and in judging. It explores the surprisingly varied intersections between humour and the judiciary in several legal systems: judges as the target of humour; legal decisions regulating humour; the use of humour to manage aspects of judicial work and courtroom procedure; and judicial/legal figures and customs featuring in comic and satiric entertainment through the ages. Delving into the multi-layered connections between the seriousness of the work of the judiciary on the one hand, and the lightness of humour on the other hand, this fascinating collection will be of particular interest to scholars of the legal system, the criminal justice system, humour studies, and cultural studies.

 

Matthew H. Birkhold on Why Judges Cite Jane Austen

Via Electric Literature, this interesting meditation on why judges find Jane Austen so intriguing, and why, when they cite female authors at all, they cite her, as well as Harper Lee and Mary Shelley. Writes Matthew H. Birkhold, Ohio State University,

After reading every available opinion, I’ve come to a rather banal but beautiful conclusion: Jane Austen is cited as an authority on the complexity of life, particularly with regard to the intricacies of relationships. Alternatively, judges cite Austen as a shorthand for erudition and sophistication, to demarcate who is a part of high society (often, lawyers) and who is not (often, defendants), reflecting the novelist’s popular reception....Half of the published legal opinions that cite Jane Austen don’t engage with her work beyond the first line of Pride and Prejudice: “It is a truth universally acknowledged that a single man in possession of good fortune must be in want of a wife.” This approach relies on the Austen quotation to underscore the legal writer’s intellect and the certainty of his or her claim. For instance, in a medical malpractice case, the court denied the plaintiff’s cause of action because “it is a truth universally acknowledged that she who comes into equity must come with clean hands.”

More here.

Allen on Doctrinal Reasoning as a Disruptive Practice

Jessie Allen, University of Pittsburgh, School of Law, is publishing Doctrinal Reasoning as a Disruptive Practice in volume 6 of the Journal of Law and Courts (2018). Here is the abstract.

Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.

Download the article from SSRN at the link.

ICYMI: Herz on The Art of Justice: The Judge's Perspective @hartpublishing

ICYMI: Ruth Herz, Research Associate, Centre for Criminology, University of Oxford,The Art of Justice: The Judge's Perspective (Hart Publishing 2012).

This book presents a unique and intriguing collection of drawings of courtroom scenes. Entering the courtroom wearing his robe, Judge Pierre Cavellat literally had a secret up his sleeve. Hidden in it were pens and pencils, which he used to sketch the scenes he observed from his bench. Throughout a 40-year judicial career in one of France's more important regional appellate courts, Cavellat produced hundreds of illuminating drawings and paintings depicting the court proceedings but also the main actors: the prosecutors, defence counsel, his fellow judges, the defendants, witnesses, policemen, the general public, as well as the courtroom itself and its architecture. The resulting vivid and uncensored impressions give an unprecedented insight into how a judge perceives his profession and the institution of justice as a whole. Given the scarcity of written autobiographies by judges, and their reluctance to lay bare their inner feelings and thinking, the images reveal, in a candid and immediate fashion, the deeply hidden emotions, ambiguities and fantasies of a judge going about his work. The author, a judge herself, interprets the images through the lens of her own judicial experience, exploring how judges think and act and how their thinking is constructed through their education, professional training, gender and class. In doing so she exposes how personal background, history and experience play an additional, sometimes conflicting, role in 'judgecraft'. While relevant to both practitioners and students of law this book should also appeal to the wider public.

 

Lynch on the Role of Circuit Courts in the Formation of United States Law in the Early Republic @hartpublishing

New from Hart Publishing: David Lynch, English Circuit Judge (ret.), Honorary Fellow and Visiting Research Fellow of Liverpool John Moores University, The Role of Circuit Courts in the Formation of United States Law in the Early Republic (2018).

While scholars have rightly focused on the importance of the landmark opinions of the United States Supreme Court and its Chief Justice, John Marshall, in the rise in influence of the Court in the Early Republic, the crucial role of the circuit courts in the development of a uniform system of federal law across the nation has largely been ignored. This book highlights the contribution of four Associate Justices (Washington, Livingston, Story and Thompson) as presiding judges of their respective circuit courts during the Marshall era, in order to establish that in those early years federal law grew from the 'inferior courts' upwards rather than down from the Supreme Court. It does so after a reading of over 1800 mainly circuit opinions and over 2000 original letters, which reveal the sources of law upon which the justices drew and their efforts through correspondence to achieve consistency across the circuits. The documents examined present insights into momentous social, political and economic issues facing the Union and demonstrate how these justices dealt with them on circuit. Particular attention is paid to the different ways in which each justice contributed to the shaping of United States law on circuit and on the Court and in the case of Justices Livingston and Thompson also during their time on the New York State Supreme Court.

Treanor on the Genius of Hamilton and the Birth of the Modern Theory of the Judiciary @GeorgetownLaw

William Michael Treanor, Georgetown University Law Center, is publishing The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary in the Cambridge Companion to the Federalist (Jack Rakove & Colleen Sheehan eds., Cambridge University Press Forthcoming). Here is the abstract.

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison’s political and constitutional theory the great story of the Federalist, and Federalist 10, in particular, has long been “in the center of constitutional debate.” But careful study of essays 78 through 83 reveals that Hamilton had an innovative and consequential vision of the law and the judicial role that deserves at least as much attention as Madison’s contributions.

Download the essay from SSRN at the link.

Carugati @Ostrom_Workshop and Weingast on Decision-Making in the Athenian Law-Courts

Federica Carugati, Indiana University, Bloomington, Ostrom Workshop, and Department of Political Science, and School of Law, and Barry R. Weingast, Stanford University Department of Political Science, have published Rethinking Mass and Elite: Decision-Making in the Athenian Law-Courts. Here is the abstract.

In the Athenian law-courts, wealthy, educated, and powerful elites fought one another to prevail as leaders and advisors of the masses. Regulated by the masses’ ideals of a good society, elite competition pushed Athens toward stability, prosperity and cultural immortality. Or did it? This article puts pressure on the mass and elite model of Athenian litigation (M&E). According to the M&E model, litigation is a game played by elite litigants and mass audiences; elite litigants seek to win over their opponents as a means to gain honor; and the masses constitute a monolithic body with identical preferences. This model, we suggest, does not adequately explain the dynamics of law- and policy-making in the Athenian courts. Combining findings from two separate bodies of literature in classics and political science, we build a new model of Athenian litigation that modifies the M&E model in two fundamental respects: first, jurors’ preferences are meaningfully pluralistic, therefore litigants (who are not only elites) face uncertainty as to the precise position of the median juror; and second, litigants want to win, but they also have preferences over policy/legal outcomes. Our model identifies the mechanisms that enabled diverse interests to be advanced and negotiated in ways that fostered both stability and innovation in Athenian law- and policy-making.

Download the article from SSRN at the link.

Slocum on The Nature of Legal Interpretation: What Jurists Can Learn About Legal Interpretation From Linguistics and Philosophy

Brian G. Slocum, McGeorge School of Law, is publishing Introduction: The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy in The Nature of Legal Interpretation: What Jurists Can Learn About Legal Interpretation From Linguistics and Philosophy (University of Chicago Press, 2017). Here is the abstract.

Language shapes and reflects how we think about the world. It engages and intrigues us. Our everyday use of language is quite effortless — we are all experts on our native tongues. Despite this, issues of language and meaning have long flummoxed the judges on whom we depend for the interpretation of our most fundamental legal texts. Should a judge feel confident in defining common words in the texts without the aid of a linguist? How is the meaning communicated by the text determined? Should the communicative meaning of texts be decisive, or at least influential? To fully engage and probe these questions of interpretation, this volume draws upon a variety of experts from several fields, who collectively examine the interpretation of legal texts. In The Nature of Legal Interpretation, the contributors argue that the meaning of language is crucial to the interpretation of legal texts, such as statutes, constitutions, and contracts. Accordingly, expert analysis of language from linguists, philosophers, and legal scholars should influence how courts interpret legal texts. Offering insightful new interdisciplinary perspectives on originalism and legal interpretation, these essays put forth a significant and provocative discussion of how best to characterize the nature of language in legal texts.

Download the essay from SSRN at the link.

A Website Devoted To Judicial Images

Via Maks Del Mar @maksdelmar: A terrific website devoted to judicial images: Judicial Images: Production, Management, & Consumption. 

Check it out.

van Domselaar on The Perceptive Judge

Iris van Domselaar, University of Amsterdam, has published The Perceptive Judge. Here is the abstract.

Up until today the way judges perceive has received little attention in legal discourse. Adjudication is most often conceptualized as a practice in which judges apply rules and principles. The focus has predominantly been on the actual decisions judges take, the underlying justificatory rules and principles and the meaning of the decision for the legal system. This paper by contrast puts judicial perception at the centre of adjudication. It offers a philosophical account of judicial perception that understands it as a special ethical, character dependent - skill that a judge needs in order to adequately cope with the case he is confronted with. In this account ‘thick (legal) concepts’ play a vital role. Throughout the text Ian McEwan’s novel The Children Act is used as illustrative source.

Download the article from SSRN at the link.

Davis on Recent Judicial Criticism Cases

Kirsten K. Davis, Stetson University College of Law, is publishing Recent Judicial Criticism Cases: Audience, Style and Tone Matter in the AALS Professional Responsibility Section Newsletter, Fall 2016. Here is the abstract.

Do courts care about audience, style, and tone when lawyers criticize judges? Three recent state supreme court opinions suggest they do.

Download the essay from SSRN at the link.

Christie on Courts and the Search for Ultimate Moral and Political Truth

George C. Christie, Duke University School of Law, has published Some Reasons Courts Have Become Active Participants in the Search for Ultimate Moral and Political Truth in Le droit compare et.../ Comparative Law and... (A. Albsrian and O. Moreteau eds., Presses Universitaires d'Aix-Marseille, 2015). Here is the abstract.

This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.

Download the essay from SSRN at the link.