Copyright (c) 2008 All rights reserved. http://works.bepress.com/sarah_cravens Recent documents in Sarah M. R. Cravens en-us Mon, 17 Nov 2008 07:06:05 PST 3600 http://works.bepress.com/sarah_cravens/5 http://works.bepress.com/sarah_cravens/5 Wed, 16 Apr 2008 08:54:26 PDT This Article proposes that the fundamental goal of judicial ethics and practice is to achieve actual justice in judicial decisionmaking. To that end, it argues that current attempts to resolve concerns about impartial judicial decisionmaking through appearance-based recusal and disqualification standards are ill-conceived and ineffective. It proposes a substantial curtailment of recusals and a corresponding strengthening of the judicial duty to sit. It proposes to resolve fundamental concerns about actual justice and, at the same time, to address concerns about public confidence in the judiciary through a requirement that judges provide explanations of adequate internal legal reasons supporting their dispositive decisions. Such a move puts the focus on those reasoned elaborations in the assessment of the legitimacy of both the decisions and the performance of the judges who reached them rather than on a focus on mere guesswork about what might be influencing judges in their deliberations. Sarah M. R. Cravens Judicial Role http://works.bepress.com/sarah_cravens/4 http://works.bepress.com/sarah_cravens/4 Wed, 24 Oct 2007 09:59:41 PDT What happens when the parties miss the point? It is well established that if a party has failed to address an issue, either in a lower court or in an appellate brief, that party has waived the issue, and the court is under no obligation to consider it. This usual formulation of the principle focuses on the actions and the justified expectations of the parties, rather than those of the court. Thus it is clear that from the court's perspective, there is no obligation to consider an issue that has not been properly raised or preserved on appeal. It is not as clear, however, to what extent the court may choose to consider such an issue sua sponte. Even less clear, although perhaps more interesting, is the question of what the court should do when it notices that the parties have failed to raise a particular argument to support an already properly raised issue, or when the court sees an anterior issue that must logically be decided before reaching the issues the parties have properly raised, or even when the court sees a completely different framework in which to view the case.That is, what happens when the parties simply miss the point? To what extent should the court involve itself in the process by adding to or refining the arguments the parties have made to support the issues they have raised on appeal? Is the role of an appellate judge simply to decide between or among the arguments set before it, implementing whatever rules of procedure apply? Or is it to reflect on the issue the parties have brought to the court and to reach the most correct resolution of that issue? This Article will ultimately conclude that, above all else, these questions need to be more carefully and openly examined by the appellate courts that deal with them. My own answer is that judges should at least be strongly encouraged to be more "involved" in the sense in which I will use that term in this Article--by using their discretion to improve the law by implementing the most correct reasoning. This Article concludes that judges serve in some respects as trustees or custodians of the law, and therefore have an active role to play in directing individual cases to the best and clearest conclusions. Sarah M. R. Cravens Judicial Role http://works.bepress.com/sarah_cravens/3 http://works.bepress.com/sarah_cravens/3 Wed, 24 Oct 2007 09:57:00 PDT The title of this symposium asks whether we have ceased to be a common law country and proceeds to tie that question to the issue of publication of judicial opinions. Although an answer to that question depends a great deal on an understanding of what it means to be a "common law country," I will begin by saying that if we have not already ceased to be a common law country, we soon shall, unless there is a significant shift in the norms for production of judicial decisions. The related question I shall pursue in this essay is what might be one of the advantages of changing course toward a more perfect common law system, insofar as that change would involve the practice of publication of opinions. In this essay, I propose that a required practice of publication of all judicial opinions (as I shall define that practice below) would both better satisfy the judicial duty to account for management of the common law and provide a greater opportunity for the flourishing of judicial virtue and the revitalization of a meaningful common law tradition. Sarah M. R. Cravens Judicial Role http://works.bepress.com/sarah_cravens/2 http://works.bepress.com/sarah_cravens/2 Wed, 24 Oct 2007 09:47:47 PDT Sarah M. R. Cravens Judicial Role http://works.bepress.com/sarah_cravens/1 http://works.bepress.com/sarah_cravens/1 Wed, 24 Oct 2007 09:36:11 PDT This paper was delivered in October as the inaugural Hon. Stephanie K. Seymour Lecture at the University of Tulsa College of Law. The lecture addresses the issue of finding a meaningful definition of discretion in judicial decisionmaking, using the lens of current issues in federal sentencing law as a working example for the review of discretion in practice. Sarah M. R. Cravens Judicial Role