140 Pages Posted: 10 Nov 2008 Last revised: 15 Jul 2010
Date Written: May 5, 2010
This is an updated and expanded (as of May 2010) draft of a set of course materials for a seminar entitled Judging and the Judicial Process. The materials are intended to be useful to both teachers and scholars. The focus of the course is on courts as institutions and on judges as the primary actors within those institutions. In their present incarnation, the materials open by outlining what one might call the standard model of judging, which calls for judge-umpires to apply determinate law via formalist analysis. The course then works through a series of critiques of that model, including the work of the legal realists, public law theorists, political scientists, cognitive scientists, and so on. Much of the remainder of the class is devoted to considering the various procedural constraints that work to ensure judicial accountability. These include judicial opinions, the doctrine of precedent, and the rest of Karl Llewellyn's major steadying factors. The materials also consider judicial activism and judicial independence, the relative merits of specialized versus generalist judges, the continued existence of nonlawyer judges, judicial ethics, and judicial selection at both the federal and state levels. Future versions will include sections on discretion, deference, managerial/bureaucratic judging, and the inherent powers of courts.
These materials are a work in progress, and are surely incomplete in important respects. I welcome all feedback concerning how they might be improved.
Keywords: judging, judges, judicial process, courts, judicial opinions, judicial independence, judicial activism, precedent, specialized courts, judicial ethics, judicial selection
JEL Classification: K4, K40, K41
Suggested Citation: Suggested Citation
Oldfather, Chad M., Judging and the Judicial Process (May 5, 2010). Marquette Law School Legal Studies Paper No. 10-27. Available at SSRN: https://ssrn.com/abstract=1297423 or http://dx.doi.org/10.2139/ssrn.1297423