Judges & Judicial Process – Page 54 – Marquette University Law School Faculty Blog

Recusal as Censorship?

Post author:Richard M. Esenberg
Post published:June 10, 2009
Post category:Judges & Judicial Process Political Processes & Rhetoric U.S. Supreme Court

The Supreme Court’s decision on Monday in Caperton v. A.T. Massey Coal Company is interesting for what it may portend and for the methodological dispute between the majority and the dissent.

You know (or I’ll tell you) the basic facts. Massey has an important case before the West Virginia Supreme Court – an appeal of a $ 50 million verdict against it and in favor of Caperton and others. Massey’s CEO makes independent expenditures in the amount of $3 million in support of candidate Brent Benjamin. Benjamin wins and so does Massey – by a 3-2 vote with now Justice Benjamin in the majority.

The Supreme Court held, in a 5-4 decision, that Benjamin’s failure to recuse himself violated Caperton’s due process rights. So what’s the problem?

MULS 2009 Works-In-Progress Workshop (June Session)

Post author:Irene Calboli
Post published:June 5, 2009
Post category:Corporate Law Criminal Law & Process Education & Law Health Care Human Rights Intellectual Property Law International Law & Diplomacy Judges & Judicial Process Legal Education Legal Practice Legal Scholarship Wisconsin Law & Legal System

champ To open my month as faculty blogger, I would first like to thank my colleague Michael O’Hear, whose dedication to, and work for, the Marquette Faculty Blog since its creation last summer have been incredible. This is very much one of the major reasons why this project has been so successful and brought so many wonderful contributions to so many aspects of the law so far.

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc. We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools. Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program.

Correlation Between Number of Questions the Justices Ask and Losing Your United States Supreme Court Case

Post author:Jessica E. Slavin
Post published:May 25, 2009
Post category:Federal Law & Legal System Judges & Judicial Process Legal Practice U.S. Supreme Court

The New York Times has published a story about some studies showing a strong correlation between the number of questions the Supreme Court justices ask a particular litigant during oral argument and an increased likelihood that that side will lose. In the words of the attorney who did some of the first work on this question while she was a still a law student,

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Shullman only studied ten cases, but, the article reports, Chief Justice Roberts confirmed the result in his own, larger study while he was a circuit court judge.

A recent, much more thorough study, accepted for publication in the Washington University Journal of Law and Policy, seems to prove the correlation exists. From the abstract,

This paper tests whether Supreme Court justices tip their hands at oral arguments. Specifically, we test whether, when justices ask more questions of one side, that side is more likely to lose their case. The findings support the theory; namely, when justices ask more questions of the petitioner’s attorney the Court is significantly less likely to reverse the lower court decision.

The NYT remarks that Chief Justice Roberts “sounded both fascinated and a little deflated by the results of his experiment. ‘The secret to successful advocacy,’ he said playfully, ‘is simply to get the court to ask your opponent more questions.'”

The result seems obvious. It is human nature, at least among lawyers, to want to interrupt and ask questions of someone you disagree with, especially if the person’s answers are not satisfactory. In other words, the side that has a sound, convincing answer for every question has created a better argument.

Now, if only a study could show how to have a sound, convincing answer for every question in every argument. That would be a real secret to successful advocacy.