Date of Publication:
Paul Boudreaux, Property Law, in Overview of U.S. Law (Ellen S. Podgor and John F. Cooper eds., 1st ed., LexisNexis, 2009)Clicking on the button will copy the full recommended citation.
Date of Publication:
Susan D. Rozelle, Sometimes a Control Test is Just a Control Test, in Criminal Law Conversations (Paul H. Robinson et al. eds., Oxford University Press, 2009)Clicking on the button will copy the full recommended citation.
Date of Publication:
Susan D. Rozelle, No Excuse for You, in Criminal Law Conversations (Paul H. Robinson et al. eds., Oxford University Press, 2009)Clicking on the button will copy the full recommended citation.
Date of Publication:
Michael S. Finch, Choice of Law and Enforcement of Judgments, in Overview of U.S. Law (Ellen S. Podgor and John F. Cooper eds., LexisNexis, 2009)Clicking on the button will copy the full recommended citation.
Date of Publication:
Candace Zierdt, Promises and Obligations in American Contract Law, in Overview of U.S. Law (Ellen S. Podgor and John F. Cooper eds., LexisNexis, 2009)Clicking on the button will copy the full recommended citation.
Date of Publication:
Ciara Torres-Spelliscy et al., Improving Judicial Diversity, in Women and the Law (Thomson/West, 2009)Clicking on the button will copy the full recommended citation.
The United States is more diverse than ever, but its state judges are not. While we recognize that citizens are entitled to a jury of their peers who will be drawn from a pool that reflects the surrounding community, Americans who enter the courtroom often face a predictable presence on the bench: a white male. This is the case despite increasing diversity within law school populations and within state bars across the country. Most of the legal disputes adjudicated in America are heard in state courts. As such, they must serve a broad range of constituencies and an increasingly diverse public. So why are state judiciaries consistently less diverse than the communities they serve? Unfortunately, studies show that both merit selection systems and judicial elections are equally challenged when it comes to creating diversity. Today, white males are overrepresented on state appellate benches by a margin of nearly two-to-one. Almost every other demographic group is underrepresented when compared to their share of the nation’s population. There is also evidence that the number of black male judges is actually decreasing (one study found that there were proportionately fewer black male state appellate judges in 1999 than there were in 1985). There are still fewer female judges than male, despite the fact that the majority of today’s law students are female, as are approximately half of all recent law degree recipients. This pattern is most prevalent in states’ highest courts, where women have historically been almost completely absent.
Date of Publication:
Luz Estella Nagle and Bruce Zagaris, U.S. International Criminal Law, in The State of Criminal Justice 2009 (American Bar Association, Criminal Justice Section, 2009)Clicking on the button will copy the full recommended citation.
Date of Publication:
Royal C. Gardner and Ezequiel Lugo, Official Development Assistance: Toward Funding for Sustainability, in Agenda for a Sustainable America (John C. Dernbach ed., ELI Press, 2009)Clicking on the button will copy the full recommended citation.
Date of Publication:
Luz Estella Nagle, The Rule of Law in Latin America, in Latin America Democracy: Emerging Reality or Endangered Species? (Richard Millett et al. eds., 1st ed., 2008)Clicking on the button will copy the full recommended citation.
Date of Publication:
D. Benjamin Barros, Nothing “Errant” About It: The Berman and Midkiff Conference Notes and How the Supreme Got to Kelo with Its Eyes Wide Open, in Private Property, Community Development & Eminent Domain (Robin Paul Malloy ed., Ashgate, 2008)Clicking on the button will copy the full recommended citation.
This Essay draws on the Supreme Court's conference notes in Berman v. Parker and Hawaii Housing Authority v. Midkiff to contest Justice O'Connor's assertion in her Kelo v. City of New London dissent that there is a sense in which this troubling result [in Kelo] follows from errant language in Berman and Midkiff. The conference notes in those cases in fact reveal that the Court used broad language intentionally (in Berman) and was aware of the risk of broad language (in Midkiff). Further, the broad language that O'Connor found objectionable was essential to the Court's holdings in Berman and Midkiff, and the cases could not have been decided on narrower grounds. Justice O'Connor's suggestion that the broad language in Berman and Midkiff was the result of a judicial slip of the pen therefore is incorrect.
The Court's decisions in Berman and Midkiff consciously avoided the hard questions presented by the issue of public use and deferred those questions to the legislature. The intentional abdication of the judicial role in reviewing issues of public use reflected in the Berman and Midkiff conference notes reinforce the position that Kelo is entirely consistent with the Supreme Court's public use precedents. A more compelling dissent by Justice O'Connor therefore would have argued not that Berman and Midkiff contained loose language, but that with the benefit of hindsight Berman and Midkiff's deference to the legislature was a mistake that should be corrected by overruling the prior cases.