Volume 101, No. 1 : Spring 2017

Rebuild Our Courts: State Chief Justices Call for Action to Achieve Justice for All

The Conference of Chief Justices issues a sweeping call for judges to work together to restore public confidence in the courts by rethinking, in fundamental ways, how courts operate. “It is imperative to examine the civil justice system holistically, consider the impact of the recent civil justice innovations, and develop a comprehensive set of recommendations for civil justice reform to meet the needs of the 21st century.”

Download the PDF

Why We Read the Scalia Opinion First

Paul Clement, former U.S. Solicitor General and a former clerk to Justice Antonin Scalia, undertakes the “daunting project” of writing about the late justice’s writing. “The Justice plainly had a gift that is perhaps better savored than analyzed,” Clement writes. “But just as the Justice’s most memorable lines perfectly captured his doctrinal point, his distinct writing style flowed directly from his approach to the law.”

Foundations of U.S. Federalism

How America interprets the balance of federal and state power has changed over two hundred years. Those changes reflect, and helped us survive, challenges that almost destroyed the nation. How best to strike that balance continues to pervade critical aspects of modern American government, including healthcare, race, civil liberties, the environment, and foreign policy. Federalism also directly affects tax policy, elections, and domestic relations. This article outlines how American federalism developed and how it serves as the basic organizing principle of American government.

It’s Time for Judges to Tweet, Like, and Share

Judges have a duty to educate the public about the important role the judiciary plays in their daily lives, writes Judge Dillard. But in order to do that, judges must rethink the way they engage, and that begins with putting to rest the notion that it’s a good idea to separate themselves from the rest of society. Here, Judge Dillard — a prolific presence on Twitter under the name @JudgeDillard — explains why and how he uses social media to engage with the people he serves.

Download the PDF

Saving Our Profession – It’s Up to Us

“There may be some in the legal profession who believe the profession is just fine as it is,” writes Judge Webster. “There may be some who haven’t heard or have just been out of touch with some disturbing realities that affect our profession and criminal and civil justice system negatively. But I believe our profession needs saving, and we must be the ones to save it.” Webster lays out the challenges — increasing public distrust of the legal system; lack of excellent legal representation available for indigent defendants in serious felony cases; lack of excellent legal representation available to lower- and middle-class citizens in civil cases; and real and damaging racial disparities in the way our system delivers justice — as well as the ways judges can make a difference.

Download the PDF

Picking Judges: How Judicial-Selection Methods Affect Diversity in State Appellate Courts

Many factors affect diversity within the judiciary. Here, Judge Johnsen studies the relationships between selection methods, career experience, and the number of women and minority judges serving as appellate judges across the country. She finds, among other things, that states that select judges through merit-based systems may disadvantage women, particularly women with private practice experience, but offer advantages to women who have served in clerkships.

Judicial Excellence After Earl Warren

No justice is perfect, but canonizing certain justices can provide a useful standard against which we can evaluate other justices. In this article, Professor Frost argues that the canonization of Chief Justice Earl Warren changed the standards by which judicial excellence is gauged. Both praised and vilified since the day he announced a unanimous decision in Brown v. Board of Education, Warren remains esteemed for his leadership, his statesmanship, and, most of all, for the results he achieved. And because of him, Frost says, judicial craftsmanship and reliance on precedent, history, and doctrine were deemphasized as criteria for excellence on the Court, while the pursuit of ethical ideals, informed by a certain reading of the text, became a more central concern of judicial performance.

Mindfulness and Judging

“As professional decision makers,” Judge Fogel writes, “judges typically become skilled at thinking reflectively and articulating reasons for their decisions. Most judges try to recognize and account for their reactions to the cases they hear and to avoid ruling impulsively. Judges also strive to treat people fairly.” But sometimes the emotion of a case can complicate the decision-making process. To help, Fogel suggests adopting mindfulness strategies.