State Judiciary Research Articles

Ambition, Gender, and the Judiciary

With the work of scholars like Fox and Lawless (2004) and Sanbonmatsu (2002), the discipline of political science began to understand individual-level explanations for women's representation in state legislatures. Such analysis, however, has not been extended to other branches of government, including state judiciaries. To examine individual-level explanations for representation on state courts, this article examines the results of a survey of Texas attorneys. The results of this research suggest that running for the judiciary is somewhat different from running for other office, and future research needs to explore the variation in ambition across types of offices.

Familia y maltrato doméstico Audiencia episcopal de Córdoba, Argentina. 1700-1850

These few pages discuss an almost unknown face of the domestic and familiar universe in the jurisdiction of the episcopal audience in Cordoba, Argentina: coercion and domestic maltreatment in their different shades, which also apply to Buenos Aires and Latin American countries such as Mexico, Chile, Peru, Brazil and Paraguay. The breaking of a wedding promise and the family reactions show the tensions that relationships between men and women could be exposed to, even before the wedding was celebrated, as well as the coercive interventions by relatives trying to solve them. The parents’ opposition to the choices made by their children, sometimes expressed through physical punishment, reveals situations of conflict within and between families in that society. On the other hand, there was the use of violence and intimidation against fiancees to compel them to marry against their will. Brutality and maltreatment between husband and wife and between parents and children, including incestuous attacks, are problems that are also present in families of traditional societies. Their characteristics and the responses by the church and state judiciary to these situations are the main topic of this article. The – ecclesiastic and civil – sources used in this research consist of marriage cases about separation from bed and board as a means to deal with cruelty and marital maltreatment; dissensions and marriage nullification, as well as lawsuits caused by the failure to get married for the analysis of the phenomenon of reverential fear; and civil lawsuits from criminal sections to examine cases of incestuous sexual abuse. Key words: family history, marriage history, violence within the family, domestic maltreatment and abuse, social history of family and marriage.

Methodology of Uniform Contract Law - The UNIDROIT Principles as a Source of Law

The remarkable pace at which the global exchange of goods, services and information develops, leads to new challenges for those who deal with contract law, both on a national and international level. More specifically, the law relating to commercial contracts is an area of growing interest. Both the formal, and the so-called ‘soft law’, legislation relating to cross-border trade have attracted great interest in the past ten years in legal scholarship and practice. This area of law has thereby become more accessible through the first publication the UNIDROIT Principles of International Commercial Contracts (by the UNIDROIT Institute in Rome, 1994) and through other publications on the ‘New Lex Mercatoria’, which collectively provide lists and overviews of current laws and model laws and similar.2 The term which describes the thereby highlighted type of law is often ‘transnational’, or ‘a-national’, uniform contract law. The subject has also been successfully integrated into legal education, following recommendations by scholars at numerous international conferences throughout the last ten years. Despite this, the prevailing views of jurisprudence, judiciary and legislative organs in most European states do not agree with the underlying theories. Instead, national legislators tend to remain focused on internal markets and participants within the home territory. As a result, transnational uniform contract law is not used as widely as it could be, and this therefore, leads to a shortfall in the potential of international trade law as a whole.

Initial Experience Under The Amended U.S. Federal Rules Regarding E-Discovery

Over ninety percent of the documents that a corporation generates today are in electronic form, and only one third of these documents will ever be reduced to paper form over their life. The implications are quite simple: the evidence in most civil and criminal litigation is found on computing systems. This reality largely went ignored in the United States over the last decade, during which courts issued ad hoc opinions regarding if and how electronically stored information (ESI) would be discovered or disclosed by the respective parties. In December of 2006, however, the United States judiciary changed this equation by adopting a new set of procedural rules that govern federal litigation. Under these Amended U.S. Federal Rules of Civil Procedure, (Amended Rules ) electronic discovery is now mandated in all federal cases. The Rules also govern the preservation, collection and production of ESI. Approximately five months have passed since the 1 December 2006 effective date of the Amended Rules About a third of corporate America has a fairly good understanding of the Rules, taking the necessary steps to put into place protocols to address them. Another third of corporate America is currently in the process of doing so. The remaining third, however, has really not fully grasped the implications of the Amended Rules and the potential increased in costs and risks associated with these changes. In the United States, the federal judiciary is given wide latitude to interpret and apply the Federal Rules. While it is early in the process to fully understand how the judiciary will apply the Amended Rules, the cases issued over the last several months demonstrate some discernable trends. Notably, courts are (1) holding outside counsel accountable for not engaging in more comprehensive or meaningful pre-discovery conferences as required under the Amended Rules; (2) ordering that parties rely on technical staff beyond the legal team -whether a forensic expert or an employee - with the appropriate knowledge of the company's IT systems; (3) willing to more readily order the production of native documents in particular cases despite the lack of blanket requirement therefor, and (4) continuing to impose sanctions for failure to preserve or produce ESI. In addition, 28 federal district courts have adopted their own guidelines or local rules-several of which go well beyond the requirements of the Amended Rules. This article summarizes the initial experience of courts and litigants and recommends best practices with regard to implementation of the Amended Rules.

Domestic Judicial Institutions and Human Rights Treaty Violation

Democratic and autocratic states routinely violate their international agreements protecting human rights. Scholars typically study this phenomenon by focusing on ratification or compliance behavior separately. In our view, these behaviors are inherently linked, and our analysis should address the link explicitly. We consider how domestic judiciaries influence the joint choice to ratify and comply with international human rights regimes. Using data on the ratification status of states under the Convention Against Torture (CAT) and states' torture practices, we find that the joint probability of being ratified under the CAT and violating its terms decreases in the effectiveness of a state's judiciary; and that the joint probability of not being ratified and engaging in behavior proscribed by the CAT increases in the effectiveness of a state's judiciary. The paper suggests that while effective judiciaries offer the promise of an enhanced international human rights law, it is in part a false one. Where judiciaries constrain, states are more likely to avoid these regimes and violate human rights anyway. Where judiciaries do not constrain, states are likely to join and ignore their obligations.

The Future of Disparate Impact in Britain and the United States: Shoot the Wards Cove Quota Myth and Recognize Plantation Economy Cases

Librarians wanted - applicants must be over six feet tall is a subtle way of achieving a discriminatory goal. Since the seminal case of Griggs v Duke Power , decided by a unanimous Supreme Court in 1971, the United States judiciary has, using disparate impact theory, recognised such cases as legally actionable. Case law also recognised some (but not all) discriminatory subjective hiring practices (such as excessive discretion given to one manager), but stopped short, in Wards Cove v Atonio, of recognising cases, where there is a racially stratified workforce with no identified specific cause. In the meantime, the British Parliament followed Griggs by outlawing indirect discrimination in the Sex Discrimination Act 1975 and the Race Relations Act 1976. However, after some deference to the spirit of Griggs in the early years, the British judiciary gave the statutory definition the narrowest interpretation. So much so, that in recent years, a new statutory definition was introduced to reverse the effect of these cases. In liberalising the law, the new definition opens the way to challenge subjective hiring practices, and possibly the plantation economy cases that were rejected in Wards Cove. For the first time British anti-discrimination law has the opportunity of advancing on its American model. Central to this is overcoming the objections made in Wards Cove . The underlying and surviving reasoning of the Wards Cove decision is that to recognise these cases would force employers to adopt quotas. This paper will show that all discriminatory subjective hiring practices should be actionable and that the Wards Cove quota reasoning is technically flawed and a fiction. Further, it will demonstrate positive reasons why plantation economy cases should be recognised.

Judicial Campaign Codes after Republican Party of Minnesota v. White

The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters in a so-called retention election - in which there is no competing candidate but voters are asked simply whether they approve of the incumbent - in order to keep their positions. In twenty of the states that provide for electoral contests between competing judicial candidates, some or all judicial elections are nonpartisan, even though candidates for other state offices are elected on party lines. Most strikingly, virtually all states that provide for judicial elections also impose campaign codes that restrict the election-related activities of judicial candidates to a far greater extent than these states regulate the campaigns of executive and legislative candidates. Generally adopted by rule of the state's highest court rather than by statute, these codes, inter alia, limit judicial candidates may say in their campaigns, restrict how they raise campaign contributions, and curtail their ability to engage in partisan political activities other than support for their own candidacies. In 2002, the United States Supreme Court sharply called into question the constitutionality of state judicial campaign restrictions. In Republican Party of Minnesota v. White, a closely divided Supreme Court invalidated the provision of the Minnesota Code of Judicial Conduct that precluded ju-dicial candidates from announcing their views concerning disputed legal and political questions. White found that the First Amendment applies to a judicial campaign code and, therefore, the code's restriction on campaign speech should be subject to strict judicial scrutiny. The Court cast doubt on the primary rationale for the campaign canons - preserving the impartiality and the appearance of impartiality of the state judiciary - and expressed skepticism with regard to the notion that even if judicial impartiality is a compelling state interest, that interest may be advanced by campaign speech restrictions. Moreover, the Court emphasized the positive value of enabling judicial candidates to express themselves on disputed political and legal questions. As the Court stated, those are what the elections are about. Although Justice Scalia's majority opinion observed that we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office, the Court also pointedly declined to find that the First Amendment allows greater regula-tion of judicial election campaigns than of other Rather, noting the important lawmaking role of American courts, the majority concluded that the dissenters greatly exaggerate[d] the difference between judicial and legislative elections. White's treatment of the judicial impartiality rationale and its application of the narrow tailoring requirement raise questions about whether any judicial campaign restriction could pass strict scrutiny. The decision casts a shadow of unconstitutionality over the entire project of judicial election campaign regulation. In the eighteen months since White, federal courts have held unconstitu-tional a number of state judicial campaign restrictions that were not at issue in White. Similarly, a number of state courts have revised their canons, including provisions not at issue in White, to make them less restrictive. To be sure, many state courts have retained their canons and have rejected First Amendment challenges to the restrictions on judicial campaign and partisan political activities that the canons impose. But the constitutionality of the state canons that subject judicial campaigns to greater regulation than legislative or executive campaigns remains uncertain.

The cloaking of power: Montesquieu, Blackstone, and the rise of judicial activism

How did the United States judiciary become so powerful - powerful enough that state and federal judges decided the 2000 presidential election? What consequences does this have for the law, constitutionalism and liberal democracy both in America and internationally. In The Cloaking of Power, Paul O. Carrese provides a provocative and original analysis of the intellectual sources of today's most powerful judiciary. Carrese argues that Montesquieu, in his Spirit of the Laws was the first to articulate a new conception of the separation of powers and the need for a strong and active judiciary. He instructed statesmen and judges to cloak by placing the robed power at the centre of politics, while concealing judges behind citizen juries and subtle reforms. Tracing Montesquieu's conception of judicial power through Blackstone, Hamilton and Tocqueville, Carrese shows how it led to the prominence of judges, courts and lawyers in America today. But he places the blame for contemporary judicial activism squarely at the feet of Oliver Wendell Holmes Jr., and his jurisprudential revolution.

"Lest we be marshall'd": judicial powers and politics in Ohio, 1806-1812

The power of judicial review -- the power of courts to pass on the constitutionality of laws -- was widely disputed during the first decades of the nation's history. In several states, judges who undertook to exercise the power were threatened with impeachment; in Ohio that threat was carried out. Tried before the state senate in 1809, Judges George Tod and Calvin Pease were each charged with subverting the state constitution by undertaking to judge the constitutionality of an act of the legislature. The power of state courts to adjudicate such questions was the sole issue in these prosecutions. A majority of the Ohio Senate voted the judges guilty, but the vote was one short of two-thirds required for conviction. Frustrated by inconclusiveness of this verdict, opponents of the power invoked a novel interpretation of the Ohio constitution's provision for judicial tenure to purge the courts of judges considered insufficiently deferential to the legislative branch. Implemented by a measure which became infamous as the Resolution, this action raised the broader issue of the judiciary's constitutional independence as a branch of state government. The controversy extended from 1806, when the first of the court decisions was rendered, until 1812 when the Sweeping Resolution was effectively repealed. Throughout this period questions with respect to the state judiciary's constitutional powers and status were issues in state-wide elections, and subjects of political conflict and contentious public discourse.

The Politics of Court Budgeting in the States: Is Judicial Independence Threatened by the Budgetary Process?

Judicial independence in American politics has been hailed as a means of preserving individual liberty and minority rights against the actions of the majoritarian branches of government. Recently, however, legal professionals and scholars of the courts have begun to question the magnitude of judicial independence, suggesting that budgeting and finance issues pose a threat to judicial independence. This article explores whether state judiciaries are being threatened on this front by soliciting the perceptions of key state officials. Using surveys of court administrators, executive budget officers, and legislative budget officers in the states, we examine three aspects of the politics of judicial budgeting: competing for scarce resources, interbranch competition, and pressure to raise revenues. The survey responses suggest that, in a substantial number of states, judicial independence has, at times, been threatened by interbranch competition and pressures to raise revenues.

Representation at All Stages of the Proceedings: The Loss of State and Federal Post-Conviction Review, Including the Impact of the AEDPA and the Need for a Independent State Judiciary

Representation at All Stages of the Proceedings: The Loss of State and Federal Post-Conviction Review, Including the Impact of the AEDPA and the Need for a Independent State Judiciary

The Impact of National Politics on State Courts: Florida After Election 2000

Election 2000 brought national attention to the state of Florida and publicly exposed tensions between the state's elected branches and its judiciary. Our research asks whether the elected branches, specifically the legislature, used this national political event to threaten the judicial branch and push through a court reform agenda during the 2001 legislative session. Focusing on several variables, including judicial selection, court staffing, the court's budget, and proposals for constitutional revision, our research uncovers some legislative success in reshaping the state's judiciary in the aftermath of Election 2000, but we also find that significant modifications to the court system were largely unsuccessful.

A network for european judicial training

The fact that the European Council has taken note of the need for judicial training at a European level is an important and most welcome development. But in the perspective of achieving soon an efficient networking of judicial training providers of the EU one should not loose sight of those instruments already available. It might be more efficient to equip the existing Bordeaux Network with the necessary personality to achieve its objectives rather than to set up a parallel network restricted to third pillar issues. It might be more promising to improve the existing Network rather than to struggle to set up a new structure towards which some member state judiciaries have grave reservations.

State Court Strategies and Politics during the Appropriations Process

This article explores state court budgetary strategies and their effectiveness in the appropriations process as perceived by key budgeting actors. In general, we find evidence of state judiciaries that try to remain “above politics” when dealing with budget issues. The most important strategies to this effect include submitting realistic requests, providing documentation to support needs, and not using budget “weapons” at their disposal (e.g., writs of mandamus). However, the survey results do indicate that state judiciaries use certain strategies that have a more political tint, such as lobbying by court officials.

Judging Judging: The Problem of Secondguessing State Judges' Interpretation of State Law in Bush v. Gore

Three United States Supreme Court Justices in Bush v. Gore would have held that the Florida Supreme Court's decision ordering a recount violated Article II Section 1's requirement that each state shall appoint, in such Manner as the Legislature thereof may direct electors for President and Vice-President. They reasoned that the Florida state court's of the Florida election laws impermissibly distorted them beyond what a fair reading required and thereby violated Article II, Section 1. Judicial interpretation can make law and rob individuals or other parties of desired predictability and stability Despite the seeming affront to federalism, the paper argues that the three Justices were on firm ground in holding that the U.S. Supreme Court can review a state court's construction of state law in order to protect a federal right, just as the Court has done in the Contracts Clause and criminal fair notice cases (Bouie). Indeed, in those two contexts, the Court has asked whether state judicial pronouncements changed prior law. Moreover, there is sound reason to conclude that the Article II, Section 1 claim should be justiciable. Irrespective of the historical pedigree, however, the concurrence's application of the doctrinal principles is nothing short of startling. When the Court has reviewed state law decisionmaking in the Bouie and Contracts Clause contexts, it has only disputed state court construction of state law on rare occasions, and it has concluded that state court decisions made new law even more rarely. Through a mixture of fictions and judicial legerdemain, federal judges in the Bouie and Contracts Clause contexts have assiduously avoided concluding that state court decisions changed prior law. They have relied on a variety of fictions to conclude that the decisions under review were foreshadowed in some way, whether because of prior dicta or developments in other jurisdictions. Courts backed off enforcing doctrine in those two contexts for a number of reasons. First, drawing a line between interpretation and making law is notoriously slippery. Few benchmarks exist to determine when interpretation stops and lawmaking starts. Although the Florida Supreme Court decision was in no way dictated by precedent, it found support in the language of the text and seemed, at a minimum, plausible. The U.S. Supreme Corut has consistently failed to disturb far more questionable state court deicisions in the Bouie and Contracts Clause contexts. Second, federal courts retreated from full enforcement of federal guarantees in light of the respect owed state judiciaries. As they began to view state jurists with greater respect, there was less justification for scrutinizing state court decisionmaking so carefully. The concurrence's opinion, in contrast, flies in the face of the Court's frequent paens to the fundamental role of federalism in our system. Third, equating judicial interpreation with lawmaking provides incentive for disapppointed litigants to seek redress in federal court for their disagreement with state court interpretation of state law. The need for finality seems even greater in the election contest. And, finally, the more that we equate judicial interpretation with lawmaking, the greater restraints that society may impose on judges. After all, the Supreme Court's equal protection analysis in Bush v. Gore appeared to many as nothing less than judicial lawmaking. The lessons of history should have alerted the concurrence to the quagmire of active enforcement of the Article II, Section 1 directive - some constitutional rights are better left underenforced.

The effects of pressure to report more details onmemories of an eyewitness event

The confidence with which an eyewitness recalls a memory is positivelycorrelated with the likelihood that the jurors will believe that memory. Inaddition, the United States judiciary recognises confidence as a key factor indetermining the accuracy of eyewitness reports. Although the effects of typeof questioning on the accuracy of eyewitness memories are fairly wellknown, little is known about the effect of questioning on subjective confidence-or the relationship between confidence and accuracy. Participants inthe present study witnessed a staged even and were questioned up to fivetimes about that event. Some participants were pressured to report moredetails, whereas others were not. Results of this paper are powerful andclear; pressuring participants to report more details increased the number ofaccurate and inaccurate statements. However, pressuring participants toreport more details did not change the predictive accuracy of their confidencejudgements.

ELECTRONIC VOTING MACHINES AND CITIZEN PARTICIPATION IN STATE JUDICIAL ELECTIONS: TOWARD GREATER JUDICIAL ACCOUNTABILITY?

The role of elections in promoting accountability to popular sentiment is a central tenet of democratic theory. The extent to which such accountability is enhanced in judicial elections in the American states, however, is threatened by low levels of citizen involvement in contests for the state judiciary—due in part to ballot roll‐off: many voters, though already at the polls, simply ignore judicial contests. Critics of elections as a means of selecting state judiciaries contend that high ballot roll‐off renders citizen participation too low for such elections to secure greater judicial accountability. This research—an analysis of seventy‐one Kentucky counties voting in recent state supreme court elections—suggests that an emerging electoral technology, the electronic voting machine, substantially reduces ballot roll‐off in judicial elections, thereby increasing citizen participation in state judicial elections. These findings have significant implications for the debate over judicial selection by popular ballot.

In search of a new ethic for treating patients with chronic pain: what can medical boards do?

Author argues that a complex "ethic of underprescribing" underlies the continued reluctance of physicians to use opioids to treat chronic pain. She contends that state medical boards are uniquely positioned to promote a new ethic for pain management, but stresses the difficulties for boards in attaining this goal. She thinks success may hinge on whether boards can change their approach to pain management and persuade a skeptical medical community that adopting a risk for underprescribing will serve the long-term interests of patients and the profession.

Book Reviews

Journal Article Book Reviews Get access Interest Groups and Judicial Federalism: Organizational Litigation in State Judiciaries, by Donald J Farole., Westport, CT: Praeger, 1998, 224 pp., $57.95 cloth. G. Alan Tarr G. Alan Tarr Rutgers University-Camden Search for other works by this author on: Oxford Academic Google Scholar Publius: The Journal of Federalism, Volume 28, Issue 4, Fall 1998, Pages 167–168, https://doi.org/10.1093/oxfordjournals.pubjof.a029994 Published: 01 January 1998

Interest Groups and Judicial Federalism: Organizational Litigation in State Judiciaries

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