Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Judicial decision-making

Discipline
Institution
Publication Year
Publication

Articles 1 - 30 of 37

Full-Text Articles in Law

Litigation Blues For Red-State Trusts: Judicial Construction Issues For Wills And Trusts, Lee-Ford Tritt Jan 2020

Litigation Blues For Red-State Trusts: Judicial Construction Issues For Wills And Trusts, Lee-Ford Tritt

UF Law Faculty Publications

Will construction—the process wherein a trier of fact must determine the testator’s probable intent because the testator’s actual intent is not clear—is too little discussed and too often misunderstood in succession law jurisprudence. Yet, construction issues are becoming increasingly important due to a growing number of will and trust disputes concerning the determination of beneficiaries in a post-Obergefell United States. Currently, courts are being asked to construe terms like “spouse,” “husband,” “wife,” “child,” “son,” “daughter,” and “descendants” in estate planning documents during a time in which understandings of marriage, identity, reproduction, religious liberty, and public policy ...


Learning From Feminist Judgments: Lessons In Language And Advocacy, Bridget J. Crawford, Linda L. Berger, Kathryn M. Stanchi Oct 2019

Learning From Feminist Judgments: Lessons In Language And Advocacy, Bridget J. Crawford, Linda L. Berger, Kathryn M. Stanchi

Elisabeth Haub School of Law Faculty Publications

This essay offers a perspective-shifting approach to meeting some of our pedagogical goals in law school: the study of re-imagined judicial decisions. Our thesis is that exposing students to “alternative judgments”—opinions that have been rewritten by authors who look at the law and the facts differently—will help students develop a more realistic and nuanced view of judicial decision-making: one that is aspirational and based in the real world, and one that allows them to envision their futures as successful advocates. The “alternative judgments” of the feminist judgments projects can enrich the law-school experience in multiple ways. First, seeing ...


Taking Laughter Seriously At The Supreme Court, Matthew Sag Jan 2019

Taking Laughter Seriously At The Supreme Court, Matthew Sag

Faculty Publications & Other Works

Laughter in Supreme Court oral arguments has been misunderstood, treated as either a lighthearted distraction from the Court's serious work, or interpreted as an equalizing force in an otherwise hierarchical environment. Examining the more than nine thousand instances of laughter witnessed at the Court since 1955, this Article shows that the Justices of the Supreme Court use courtroom humor as a tool of advocacy and a signal of their power and status. As the Justices have taken on a greater advocacy role in the modern era, they have also provoked more laughter. The performative nature of courtroom humor is ...


What Makes A Good Judge?, Brian M. Barry Jun 2018

What Makes A Good Judge?, Brian M. Barry

Reports

This article overviews research demonstrating the factors beyond the law that can affect judicial decision-making.


Precedent And Constitutional Structure, Randy J. Kozel Jan 2018

Precedent And Constitutional Structure, Randy J. Kozel

Journal Articles

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and ...


Jobs For Justice(S): Corruption In The Supreme Court Of India, Madhav S. Aney, Shubhankar Dam, Giovanni Ko Feb 2017

Jobs For Justice(S): Corruption In The Supreme Court Of India, Madhav S. Aney, Shubhankar Dam, Giovanni Ko

Research Collection School Of Economics

We investigate whether judicial decisions are affected by career concerns of judges byanalysing two questions: Do judges respond to pandering incentives by ruling in favourof the government in the hope of receiving jobs after retiring from the Court? Does thegovernment actually reward judges who ruled in its favour with prestigious jobs? To answerthese questions we construct a dataset of all Supreme Court of India cases involving thegovernment from 1999 till 2014, with an indicator for whether the decision was in its favouror not. We find that pandering incentives have a causal effect on judicial decision-making.The exposure of a judge ...


Judging The Judiciary By The Numbers: Empirical Research On Judges, Jeffrey J. Rachlinski, Andrew J. Wistrich Jan 2017

Judging The Judiciary By The Numbers: Empirical Research On Judges, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that ...


Comparison Excluding Commitments: Incommensurability, Adjudication, And The Unnoticed Example Of Trade Disputes, Sungjoon Cho, Richard Warner Jan 2016

Comparison Excluding Commitments: Incommensurability, Adjudication, And The Unnoticed Example Of Trade Disputes, Sungjoon Cho, Richard Warner

All Faculty Scholarship

We claim that there are important cases of “incommensurability” in public policymaking, in which all relevant reasons are not always comparable on a common scale as better, worse, or equally good. Courts often fail to confront this. We are by no means the first to contend that incommensurability exists. Yet incommensurability’s proponents have failed to sway the courts mainly because they overlook the fact that there are two types of incommensurability. The first (“incompleteness incommensurability”) consists of the lack of any appropriate metric for making the comparison. We argue that this type of incommensurability is relatively unproblematic in that ...


Empathy And Article Iii: Judge Weinstein, Cases And Controversies, Susan Bandes May 2015

Empathy And Article Iii: Judge Weinstein, Cases And Controversies, Susan Bandes

College of Law Faculty

The question of whether judges ought to be empathetic has been hotly debated in recent years. This volume celebrating the life and achievements of Judge Jack Weinstein presents an ideal opportunity to productively focus and narrow the empathy debate. Problematically, this debate generally treats judging as a monolithic concept. To debate whether empathy is a desirable attribute of judges as a general matter is to overlook important distinctions between trial, appellate, and Supreme Court jurists, and between federal and state courts. Using Judge Weinstein’s approach to judging as a touchstone, I explore the role of empathy for Article III ...


Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke Jan 2015

Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials ...


Altering Attention In Adjudication, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie Aug 2013

Altering Attention In Adjudication, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when ...


Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk Feb 2013

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key ...


They’Re Planting Stories In The Press: The Impact Of Media Distortions On Sex Offender Law And Policy, Heather Ellis Cucolo, Michael L. Perlin Jan 2013

They’Re Planting Stories In The Press: The Impact Of Media Distortions On Sex Offender Law And Policy, Heather Ellis Cucolo, Michael L. Perlin

Articles & Chapters

Individuals classified as sexual predators are the pariahs of the community. Sex offenders are arguably the most despised members of our society and therefore warrant our harshest condemnation. Twenty individual states and the federal government have enacted laws confining individuals who have been adjudicated as “sexually violent predators” to civil commitment facilities post incarceration and/or conviction. Additionally, in many jurisdictions, offenders who are returned to the community are restricted and monitored under community notification, registration and residency limitations. Targeting, punishing and ostracizing these individuals has become an obsession in society, clearly evidenced in the constant push to enact even ...


Antitrust And The Judicial Virtues, Daniel A. Crane Jan 2013

Antitrust And The Judicial Virtues, Daniel A. Crane

Articles

Although commentators frequently debate how judges should decide antitrust cases substantively, little attention has been paid to theories of judicial virtue in antitrust decision making. This essay considers four pairings of virtues: (1) striving for substantive purity versus conceding to institutional realism; (2) incrementalism versus generalism; (3) presenting a unified face versus candidly conceding differences among judges on an appellate panel; and (4) adhering strictly to stare decisis versus freely updating precedents to reflect evolving economic learning or conditions. While recognizing the complexities that sometimes pull judges in the opposite direction, this Article gives the nod to institutional realism, incrementalism ...


What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno Jan 2013

What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno

Faculty Scholarship

This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the ...


Claiming Neutrality And Confessing Subjectivity In Supreme Court Confirmation Hearings, Carolyn Shapiro Dec 2012

Claiming Neutrality And Confessing Subjectivity In Supreme Court Confirmation Hearings, Carolyn Shapiro

All Faculty Scholarship

Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from ...


Gender And Securities Law In The Supreme Court, Lyman P.Q. Johnson, Michelle Harner, Jason A. Cantone Jan 2012

Gender And Securities Law In The Supreme Court, Lyman P.Q. Johnson, Michelle Harner, Jason A. Cantone

Scholarly Articles

The 2010 appointment of Elena Kagan to the United States Supreme Court meant that, for the first time, three female justices would serve together on that court. Less clear is whether Justice Kagan’s gender will really matter in how she votes as a justice. This question is an especially visible aspect of a larger issue: do female judges display gendered voting patterns in the cases that come before them?

This article makes a novel contribution to the growing literature on female voting patterns. We investigated whether female justices on the United States Supreme Court voted differently than, or otherwise ...


Lower Court Constitutionalism: Circuit Court Discretion In A Complex Adaptive System, Doni Gewirtzman Jan 2012

Lower Court Constitutionalism: Circuit Court Discretion In A Complex Adaptive System, Doni Gewirtzman

Articles & Chapters

While federal circuit courts play an essential role in defining what the Constitution means, one would never know it from looking at most constitutional scholarship. The bulk of constitutional theory sees judge-made constitutional law through a distorted lens, one that focuses solely on the Supreme Court with virtually no attention paid to other parts of the judicial hierarchy. On the rare occasions when circuit courts appear on the radar screen, they are treated either as megaphones for communicating the Supreme Court’s directives or as tools for implementing the theorist’s own interpretive agenda. Both approaches would homogenize the way ...


Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman Jan 2012

Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman

Articles

The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to ...


Judicial Mindsets: The Social Psychology Of Implicit Theories And The Law, Victor D. Quintanilla Jan 2012

Judicial Mindsets: The Social Psychology Of Implicit Theories And The Law, Victor D. Quintanilla

Articles by Maurer Faculty

This article introduces Dr. Carol Dweck’s seminal and significant line of psychological research on the phenomenon of implicit theories and draws on this research as a lens through which we might better understand judicial decision-making. In particular, the article focuses on the implications of two types of implicit theories – whether people believe that phenomena are static and fixed versus dynamic and malleable. By introducing this research, this article aims to forward a research agenda designed to examine how social, contextual, and situational forces influence judicial behavior.

An entity theory reflects the mindset that phenomena are fixed and unlikely to ...


Gender And Securities Law In The Supreme Court, Lyman Johnson, Michelle M. Harner, Jason A. Cantone Jan 2012

Gender And Securities Law In The Supreme Court, Lyman Johnson, Michelle M. Harner, Jason A. Cantone

Faculty Scholarship

The 2010 appointment of Elena Kagan to the United States Supreme Court meant that, for the first time, three female justices would serve together on that court. Less clear is whether Justice Kagan’s gender will really matter in how she votes as a justice. This question is an especially visible aspect of a larger issue: do female judges display gendered voting patterns in the cases that come before them?

This article makes a novel contribution to the growing literature on female voting patterns. We investigated whether female justices on the United States Supreme Court voted differently than, or otherwise ...


The “Eye Of The Beholder”: Professional Opinions About The Best Interests Of A Child, Noel Semple Jan 2011

The “Eye Of The Beholder”: Professional Opinions About The Best Interests Of A Child, Noel Semple

Law Publications

Child custody evaluations (CCEs) are a central feature of parenting litigation in many North American jurisdictions. However, there has been little recent research comparing CCE decisions about children’s interests with decisions made by judges. This article presents empirical research about the extent to which Ontario judges accept custody and access recommendations from CCEs employed by Ontario’s Office of the Children’s Lawyer. The central finding was that the judges fully agreed with the CCEs only about half of the time. Possible explanations for this finding are explored, the most salient of which is the effect of delay in ...


Seeing Subtle Racism, Pat K. Chew Jan 2010

Seeing Subtle Racism, Pat K. Chew

Articles

Traditional employment discrimination law does not offer remedies for subtle bias in the workplace. For instance, in empirical studies of racial harassment cases, plaintiffs are much more likely to be successful if they claim egregious and blatant racist incidents rather than more subtle examples of racial intimidation, humiliation, or exclusion. But some groundbreaking jurists are cognizant of the reality and harm of subtle bias - and are acknowledging them in their analysis in racial harassment cases. While not yet widely recognized, the jurists are nonetheless creating important precedents for a re-interpretation of racial harassment jurisprudence, and by extension, employment discrimination jurisprudence ...


Governing In The Vernacular: Eugen Ehrlich And Late Habsburg Ethnography, Monica E. Eppinger Jan 2009

Governing In The Vernacular: Eugen Ehrlich And Late Habsburg Ethnography, Monica E. Eppinger

All Faculty Scholarship

Eugen Ehrlich's vision for a "dynamic conception of law" in 1903 challenges prior focus on doctrine and logic with a demand that legal science direct attention to the "facts of daily life." Ehrlich's program -- his innovative conception of law and calls for a new sociology of law -- has been claimed as inspiration by those intent on modernizing law and state administration and by critics launching attacks on state fetishism. Between these extremes, Ehrlich's understudied ideas about implementing "living law" as a program for governance deserve re-examination.

This Article, situating Ehrlich's work in the social, intellectual, and ...


Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise Jul 2008

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Cornell Law Faculty Publications

No abstract provided.


Real Collaborative Context: Opinion Writing And The Appellate Process, Tom Cobb, Sarah Kaltsounis Jan 2008

Real Collaborative Context: Opinion Writing And The Appellate Process, Tom Cobb, Sarah Kaltsounis

Articles

Several questions motivated us to begin experimenting with new and more ambitious forms of collaboration in our teaching. We aimed to infuse the classroom with what might be called “real collaborative context.” We looked for instances of collaboration that actually occur in the legal process and asked students to participate in those processes in order to gain a better understanding of the social aspects of legal practice and jurisprudence.

Our hope is that students will experience collaboration not so much as a classroom performance whose main goal is to assist in learning something else that could also be taught in ...


Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon Jan 2008

Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon

Vanderbilt Law School Faculty Publications

Chief judges wield power. Among other things, they control judicial assignments, circulate petitions to their colleagues, and manage internal requests and disputes. When exercising this power, do chiefs seek to serve as impartial court administrators or do they attempt to manufacture case outcomes that reflect their political beliefs? Because chiefs exercise their power almost entirely outside public view, no one knows. No one sees the chief judge change the composition of a panel before it is announced or delay consideration of a petition for en banc review or favor the requests of some colleagues while ignoring those of others. Chiefs ...


Refugee Roulette: Disparities In Asylum Adjudication, Andrew I. Schoenholtz, Jaya Ramji-Nogales, Philip G. Schrag Jan 2007

Refugee Roulette: Disparities In Asylum Adjudication, Andrew I. Schoenholtz, Jaya Ramji-Nogales, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This study analyzes databases of merits decisions from all four levels of the asylum adjudication process: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005. The analysis reveals significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. In many cases, the most important ...


Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich Aug 2002

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Many people rely on mental shortcuts, or heuristics, to make complex decisions, but this sometimes leads to inaccurate inferences, or cognitive illusions. A recent study suggests such cognitive illusions influence judicial decision making.


Judicial Mindfulness, Evan R. Seamone Jan 2002

Judicial Mindfulness, Evan R. Seamone

Journal Articles

Like all human beings, judges are influenced by personal routines and behaviors that have become second nature to them or have somehow dropped below the radar of their conscious control. Professor Ellen Langer and others have labeled this general state "mindlessness." They have distinguished "mindful" thinking as a process that all people can employ to gain awareness of subconscious influences, and thus increase the validity of their decisions. In this Article, I establish a theory of "judicial mindfulness" that would guard against two types of "cold" bias when interpreting legal materials. The first harmful bias involves traumatic past events that ...