Bolch Judicial Institute
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Easing Mandatory Minimums Will Not Be Enough

Volume 100, No. 1 : Spring 2016



Continuing the debate over judicial elections
by Robert Morris


A milestone for diversity in MDL; trends in judicial selection; proportionality roadshows; respecting others’ time, and more.


He was the same person in court, at home, or at the racetrack
by Donald W. Molloy


Open academic access to PACER
by John K. Rabiej


Easing Mandatory Minimums Will Not Be Enough

by Jon O. Newman

Congress is finally considering easing mandatory minimum penalties. However, this effort, even if successful, will need to be complemented by actions taken by the United States Sentencing Commission and federal district judges.

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Open Floodgates? Independent Spending in State Supreme Court Elections After Citizens United

by Nicholas LaRowe

In 73 years (from 1936 to 2009) of state supreme court retention elections, only eight of 637 judges failed to keep their job. But in November 2010, all three justices up for retention election in Iowa’s State Supreme Court — nearly half of the seven-judge court — lost their seats as a consequence of a 2009 ruling legalizing same-sex marriage. Vast amounts of money poured into the race; conservative groups spent over $1 million independently to oust the three justices, while supporters spent $423,766. . . . Iowa [was] among the states forced to alter election laws after the Supreme Court’s ruling in Citizens United v. Federal Election Commission, and shortly after witnessed judicial elections unparalleled in rancor and expense. Is this the future of judicial elections?

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Five Things: Dos and Don’ts for Lawyers and Judges

by Ashely Moody, James S. Moody Jr., and Stephen D. Susman

We all know it’s true: Judges do things that bug lawyers. Lawyers do things that bug judges. So we asked a brave lawyer and a couple of judges (a father and daughter) to offer five dos and don’ts for making the day-to-day business of the law a little more efficient  — and maybe just a little more pleasant for us all.

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The Decline in Federal Civil Trials

by D. Brock Hornby

The first in a series of imagined conversations about federal courts among friends who once were law school classmates and now are well along in their legal careers. The conversation takes place in the chambers of Federal District Judge Nielsen Prius. The topic of conversation: The drastic decline in the number of civil trials in federal courts.  “… In that period of crowded dockets, federal judges also experimented with every available technique in an effort to move cases to resolution, including devices like summary jury trials, corporate mini-trials, and early neutral evaluation, a few of which are now almost forgotten. I’ll admit that some of what judges incorporated into their local rules and standing orders made it difficult and expensive for lawyers to try civil cases in federal court.”

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Legal Standards by the Numbers: Quantifying Burdens of Proof or a Search for Fool’s Gold?

by Richard Seltzer, Russell F. Canan, Molly Cannon & Heidi Hansberry

The American legal system depends on standards regarding the burden of proof to facilitate outcomes that accurately balance society’s interests with an assessment of risk. Judges and juries use these standards to make decisions such as granting bail, assessing the validity of stops or arrests by the police, issuing arrest and search warrants, determining guilt in criminal trials and liability in civil trials, adjudicating child custody disputes, and terminating parental rights. These standards are uniformly expressed verbally rather than numerically. Since an important underlying goal of the legal system is uniform application of the law by decision-makers, both judges and juries, these standards should mean the same thing to different people across time, type of case, and courtroom.

Why Problem-Solving Principles Should Not Be Grafted onto Mainstream Courts

by Victor E. Flango

The success of drug courts and other problem-solving courts has spurred a movement to graft problem-solving principles onto all courts. Surely, if these principles work in one set of courts, shouldn’t they be adopted by all? But principles well suited to problem-solving courts with their specialized jurisdictions are not well suited to cases that are more appropriate to resolution by the adversarial process. Many prominent organizations, including the Conference of Chief Justices and the Conference of State Court Administrators, have issued a call to “encourage” the institutionalization or “taking to scale” of the problem-solving approach. Victor Flango explains why proposals to graft problem-solving principles onto mainstream courts should be reconsidered.



Jurors Asking Questions: Judges David R. Herndon and N. Randy Smith debate the value and ramifications of allowing jurors to ask questions of witnesses.


Statues — Clear or Confusing — What is a Judge’s Responsibility? Judge Michael M. Baylson reviews Judging Statutes by Robert A. Katzmann.


Is Justice for Sale? by Bert Brandenburg > Download the PDF