Debate over the power and structure of the judiciary in the U.S. goes back to the Federalist Papers, and overt conflicts between the president and the courts go back to the administration of Thomas Jefferson. The president’s power to nominate federal judges, and Congress’s power to confirm those judges, has always been in tension with the independence of the federal judiciary. Those tensions have only been exacerbated in recent years.
With those themes as a backdrop, a pair of professors at the University of Utah S.J. Quinney College of Law have authored a new book aimed at explaining the judicial process.
“Understanding the historical roots of tensions (between the judiciary and other government branches) is key to navigating them in the future,” said Heiny, describing one of the book’s goals for law students who will use it as part of their coursework.
The professors collaborated on the project; both have similar research and teaching positions at the law school. Heiny teaches Judicial Process, Legal Writing for Judicial Clerks and Interns, and Evidence. She also teaches and advises in the law school’s Academic Support Program. She received the Peter J. Billings Excellence in Teaching Award in 2015, and the Outstanding Faculty Award in both 2016 and 2017.
McCormack teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, Judicial Process, and Civil Procedure. He joined the faculty at the College of Law in 1978 and served as Associate Dean for Academic Affairs from 1978-82, 1984-87, and 1993-94. (From 1997-2002 he coordinated the University of Utah’s involvement with the 2002 Olympic Winter Games).
Heiny spoke to the College of Law recently in a Q&A about the project and what she and McCormack hope the book brings to the academic community.
Q: Describe your new book and the themes it explores.
A: The book links the judicial internship experience with doctrines that place that experience in context. It explores both practical and theoretical aspects of clerking.
On the practical side, it covers topics such as ethics and writing for interns. On the theoretical side, it covers topics such as judicial selection, retention, power, independence, and decision-making. We also discuss current topics in court systems, such as the trend toward problem-solving courts and the rise of alternative dispute resolution. Finally, there is a brief introduction to civil law systems.
Q: Have you both been publishing this type of scholarly work for a while?
A: Professor McCormack started publishing on judicial processes in 1969, and has published frequently on constitutional and related topics ever since. He also writes about judicial independence in international forums.
This is my first book, although I’ve been teaching Judicial Process (the co-requisite class for judicial internships) for a number of years.
Q: What is new in this particular book that students will be able to use as they pursue a law degree?
A: Clinical work has become increasingly important in legal education. Employers, including judges, want graduates who are “practice ready.” The ABA is also now requiring that every law school provide experiential learning opportunities for students.
The University of Utah’s S.J. Quinney College of Law has one of the most robust clinical programs in the nation. It ranks second in the nation, just behind Yale Law School, for student clinical opportunities. Our judicial internships are an important part of that program. Those placements, and the classroom curriculum that go with them, allow students an unprecedented “behind the curtain” view into how courts function, judges think, and practitioners succeed.
Q: You are exploring these themes at an interesting time in the world. Why is it important now more than ever to study and understand these issues –particularly for students who will be shaping the legal world in the future?
A: The Rule of Law is the single most important ingredient in a functioning society. Central to the Rule of Law is a vigorous and independent judiciary. When courts are attacked or dismantled, as they have been around the world, democracy begins to die. If we can help prepare our graduates to contribute to an understanding of, and respect for, the Rule of Law, then we have served our mission.