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Articles 1 - 11 of 11
Full-Text Articles in Law
The Power Of Posner: A Study Of Prestige And Influence In The Federal Judiciary, Ryan P. Thompson, Christopher C. Mccurdy
The Power Of Posner: A Study Of Prestige And Influence In The Federal Judiciary, Ryan P. Thompson, Christopher C. Mccurdy
Duke Law Student Papers Series
Some judges have a disproportionate influence over the American judiciary; existing research has shown Judge Richard Posner is one of those judges. Our goal was to identify and determine how Judge Posner’s influence has changed over time. To measure and track his influence, we collected and compared citation and invocation data from three distinct time frames. While these measurements are imperfect, they can help illustrate the level of influence and prestige Judge Posner enjoys. The existing literature led us to expect Judge Posner’s early citation rates to be low. After several years on the bench, the citation rates for each …
Talking Judges, Mitu Gulati, Jack Knight
Talking Judges, Mitu Gulati, Jack Knight
Faculty Scholarship
What kinds of empirical questions about themselves and their colleagues on the bench are judges interested in asking? This was the topic of a recent conference at the Duke Law School. Our Essay reflects on the ways in which the judges at this conference and at a prior one talked about the empirical study of their community. To put it mildly, most of the judges were not fans of the empirical research. Our interest in this Essay is not, however, in responding to the judicial criticisms. Rather it is in drawing insights about how judges view themselves and their profession …
Schrödinger’S Cross: The Quantum Mechanics Of The Establishment Clause, Joseph Blocher
Schrödinger’S Cross: The Quantum Mechanics Of The Establishment Clause, Joseph Blocher
Faculty Scholarship
Perhaps the most famous character in modern physics is Schrödinger’s Cat, an unfortunate feline trapped in a box alongside a flask containing deadly poison that may or may not have been released. Thanks to the wonders of quantum mechanics, the cat is both alive and dead — “mixed or smeared out in equal parts” — until the box is opened, at which point the act of observation causes its state to collapse into either life or death.
Far away in the Mojave Desert, the “life” of a six-foot-tall cross is disputed: it is either a religious symbol or it is …
Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi
Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi
Faculty Scholarship
Empirical scholarship on judges, judging, and judicial institutions, a staple in political science, is becoming increasingly popular in law schools. We propose that this scholarship can be improved and enhanced by greater collaboration between empirical scholars, legal theorists, and the primary subjects of the research, the judges. We recently hosted a workshop that attempted to move away from the conventional mode of involving judges and theorists in empirical research, where they serve as commentators on empirical studies that they often see as reductionist and mis-focused. Instead, we had the judges and theorists set the discussion agenda for the empiricists by …
Iqbal And Empathy, Darrell A. H. Miller
Iqbal And Empathy, Darrell A. H. Miller
Faculty Scholarship
This Essay argues that empathy does and should play an important, albeit limited role, in a judge’s decision making process. Specifically, empathy is essential for making correct, principled, and unbiased judgments, because empathy is one of the few means we have to understand human motivation. Empathy is a crucial cognitive mechanism that can help compensate for common cognitive bias. As such, empathy, appropriately restricted, should be an accepted and meaningful tool for judges to use in evaluating the sufficiency of complaints, especially as they relate to Iqbal’s plausibility pleading standard.
All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
Faculty Scholarship
In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to …
The Costs Of Judging Judges By The Numbers, Marin K. Levy, Kate Stith, Jose A. Cabranes
The Costs Of Judging Judges By The Numbers, Marin K. Levy, Kate Stith, Jose A. Cabranes
Faculty Scholarship
This essay discredits current empirical models that are designed to “judge” or rank appellate judges, and then assesses the harms of propagating such models. First, the essay builds on the discussion of empirical models by arguing that (1) the judicial virtues that the legal empiricists set out to measure have little bearing on what actually makes for a good judge; and (2) even if they did, the empiricists’ chosen variables have not measured those virtues accurately. The essay then concludes that by generating unreliable claims about the relative quality of judges, these studies mislead both decision-makers and the public, degrade …
Professionals Or Politicians: The Uncertain Empirical Case For An Elected Rather Than Appointed Judiciary, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Professionals Or Politicians: The Uncertain Empirical Case For An Elected Rather Than Appointed Judiciary, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Faculty Scholarship
Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a data set of state high court opinions,we construct measures for three aspects of judicial performance: effort, skill, and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. Appointed judges write higher quality opinions than elected judges do, but elected judges write more opinions, and the evidence suggests that …
Interring The Rhetoric Of Judicial Activism, Neil S. Siegel
Interring The Rhetoric Of Judicial Activism, Neil S. Siegel
Faculty Scholarship
For decades, leaders of the Republican Party have decried “judicial activism” and championed “judicial restraint.” For much of that time, Republican politicians have equated judicial restraint with a commitment to judicial deference, asserting that “activist” judges disrespect the will of popular majorities. More recently, as the Republican Party has solidified its control of the federal courts and made its own claims on the Constitution, Republican politicians have tended to define judicial activism in potentially conflicting ways, mixing deference frames with claims about the autonomy of law from mere politics or personal beliefs.
In this Article, I examine these two ways …
From Judge To Dean: Reflections On The Bench And The Academy, David F. Levi
From Judge To Dean: Reflections On The Bench And The Academy, David F. Levi
Faculty Scholarship
In July of 2007, having served nearly seventeen years as a United States District Judge with chambers in Sacramento, California, I moved to Durham, North Carolina, to become the fourteenth dean of the Duke University Law School. I would concede that in the grand scheme of things such a transition must be deemed unremarkable. Lawyers have become soldiers, presidents, artists, and inn keepers. Judges have left the bench to do much the same. Nonetheless, in the somewhat closed worlds of the federal bench and the legal academy, at a time when the two worlds have seemed to drift apart, such …
Judicial Ability And Securities Class Actions, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Judicial Ability And Securities Class Actions, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Faculty Scholarship
We exploit a new data set of judicial rulings on motions in order to investigate the relationship between judicial ability and judicial outcomes. The data set consists of federal district judges’ rulings on motions to dismiss, to approve the lead plaintiff, and to approve attorneys’ fees in securities class actions cases, and also judges’ decisions to remove themselves from cases. We predict that higher-quality judges, as measured by citations, affirmance rates, and similar criteria, are more likely to dismiss cases, reject lead plaintiffs, reject attorneys’ fees, and retain cases rather than hand them over to other judges. Our results are …