Law Commons^™

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 …

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 political milieu …

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

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

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 …

No-Drop Civil Protection Orders: Exploring The Bounds Of Judicial Intervention In The Lives Of Domestic Violence Victims, Tamara L. Kuennen

Sturm College of Law: Faculty Scholarship

Whatever approach a judge takes to a victim's motion to vacate, there will be a risk. Women who are victims of domestic violence will be threatened or hurt or even killed, and the danger of this happening may increase or decrease based in part on the judge's decision. In the face of such risk, this article argues that on balance, the cost of sacrificing victim autonomy in these cases is too great, and that courts should defer to the victim's decision to vacate, except in the limited circumstance in which doing so is detrimental to an identifiable third party - …

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 moment in an asylum …

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.

The Past, Present, And Future Of Empirical Legal Scholarship: Judicial Decision Making And The New Empiricism, Michael Heise

Cornell Law Faculty Publications

Over the last century, empirical legal scholarship has joined the ranks of the mainstream within the legal academy. In this article, Professor Heise traces the history of legal empiricism and discusses its growing role within the legal academy. First, the article traces legal empiricism through the twentieth century from the legal empiricism movement of the early twentieth century, to post-World War II efforts to revive legal empiricism, including the Chicago Jury Project and large-scale foundational support for empirical legal research, through current support for legal empirical research from both the law schools and other research centers. The article then discusses …

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 …

Toward A Jurisprudence Of Cost-Benefit Analysis, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In his book, The Cost-Benefit State, democratic theorist Cass Sunstein urges regulatory agencies to make decisions based on numerical assessments of regulatory consequences, factoring in variables ranging from effects on consumer prices to lives saved. In this Review, I seek to illustrate Sunstein's conception of cost-benefit analysis and critique this conception by suggesting that cost-benefit analysis could serve a more important role than Sunstein would allow. I also argue for a more active judicial role in scrutinizing agency actions than Sunstein would recommend, though not necessarily a less deferential one. In Part I of this review, I outline Sunstein's defense …

Inside The Judicial Mind, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

The quality of the judicial system depends upon the quality of decisions that judges make. Even the most talented and dedicated judges surely commit occasional mistakes, but the public understandably expects judges to avoid systematic errors. This expectation, however, might be unrealistic. Psychologists who study human judgment and choice have learned that people frequently fall prey to cognitive illusions that produce systematic errors in judgment. Even though judges are experienced, well-trained, and highly motivated decision makers, they might be vulnerable to cognitive illusions. We report the results of an empirical study designed to determine whether five common cognitive illusions (anchoring, …

Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp

Faculty Articles

No abstract provided.

The Polyphonic Courtroom: Expanding The Possibilities Of Judicial Discourse, Robert Rubinson

All Faculty Scholarship

This Article draws upon the ideas of Mikhail Bakhtin to critique judicial discourse as embodied in written opinions. Judicial opinions are typically monologues which reject exploration of complex issues of meaning in favor of simply justifying a result. Opinions should instead be part of a continuing dialogue whose hallmark is exploration, not simplification - what the Article characterizes as "polyphonic," Polyphonic opinions should embrace dialogue and complexity and recognize the validity of multiple perspectives. This goal can not simply be willed, however, because cognition by necessity simplifies. To meet this challenges, the Article concludes with recommendations for "judicial calisthenics," including …

Evidence Of Religion And The Religion Of Evidence, Michael S. Ariens

Faculty Articles

When testimony about the religiosity of a victim is elicited, a jury will likely become aware of the religious affiliation of the victim. Any revelation to a jury of the religiosity of a victim can be an aid to the jury in assessing the punishment to be given to the defendant, since being religious and talking with people about religion is deemed a communal good. However, prescribing a harsher punishment to a defendant because of the religious affiliation of a victim is a form of religious discrimination which is unconstitutional. In light of this inherent difficulty of evidence of religion, …

The Ideal Of Liberty: A Comment On Michael H. V. Gerald D., Robin West

Georgetown Law Faculty Publications and Other Works

What is the meaning and content of the "liberty" protected by the due process clause of the fourteenth amendment? In Michael H. v. Gerald D. Justices Brennan and Scalia spelled out what at first blush appear to be sharply contrasting understandings of the meaning of liberty and of the substantive limits liberty imposes on state action. Justice Scalia argued that the "liberty" protected by a substantive interpretation of due process is only the liberty to engage in activities historically protected against state intervention by firmly entrenched societal traditions. I will sometimes call this the "traditionalist" interpretation of liberty. Justice Brennan, …

The Intellectual Development Of The American Doctrine Of Judicial Review, Pnina Lahav

Faculty Scholarship

No abstract provided.