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Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Behavioral International Law, Tomer Broude

Tomer Broude

Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral …

Deferential Review Of The U.S. Tax Court, After Mayo Foundation V. United States (2011), Andre L. Smith

Andre L. Smith

Deferential Review of the U.S. Tax Court, After Mayo examines whether the Chevron doctrine requires federal circuit courts of appeal to deferentially review the U.S. Tax Court decisions of law. Mayo Foundation v. US (2011) rejects tax exceptionalism and requires the U.S. Tax Court to defer to Treasury regulations carrying the force of law. But Mayo avoids dealing with whether Chevron applies to appellate review of the Tax Court. In “The Fight Over ‘Fighting Regs’ and Judicial Deference in Tax Litigation”, 92 B.U. L. Rev. 643 (2012), Professor Leandra Lederman (Indiana) contends that deference belongs to the agency and not …

The Lock-In Effect Of Preliminary Injunctions, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Judges suffer from the same cognitive biases that afflict the rest of us. Judges use shortcuts to help them deal with the uncertainty and time pressure inherent in the judicial process. Judges should be aware of the conditions when those shortcuts lead to systemic biases in decision-making, and adjust legal standards in order to reduce or avoid such bias altogether.

One important bias that has been identified by economists and psychologists is the lock-in effect. The lock-in effect causes a decision-maker who must revisit an earlier decision to be locked-in to the earlier decision. The effect is particularly pronounced where …

Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay

Faculty Scholarship

No abstract provided.

A Free Lunch In Chicago, Curtis E.A. Karnow

Curtis E.A. Karnow

A discussion of the ethical issues implicated by judges’ acceptance of travel and related expenses when attending privately sponsored judicial education, including seminars offered by educational institutions.

Metaphor And Analogy: The Sun And Moon Of Legal Persuasion, Linda L. Berger

Linda L. Berger

Drawing on recent studies in social cognition, decision making, and analogical processing, this article will recommend that lawyers turn to novel characterizations and metaphors to solve a particular kind of persuasion problem that is created by the way judges and juries think and decide. According to social cognition researchers, we perceive and interpret new information by following a process of schematic cognition, analogizing the new data we encounter to the knowledge structures embedded in our memories. Decision-making researchers differentiate between intuitive and reflective processes (System 1 and System 2), and they agree that in System 1 decision making, only the …

Tribute To Justice Rosalie Wahl, Donovan W. Frank

William Mitchell Law Review

No abstract provided.

Tribute To Justice Rosalie Wahl, Eric J. Magnuson

William Mitchell Law Review

No abstract provided.

Tribute To Justice Rosalie Wahl, Sharon Sayles Belton

William Mitchell Law Review

No abstract provided.

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Kevin C. Walsh

Law Faculty Publications

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …

Filling The District Of Arizona Vacancies, Carl W. Tobias

Law Faculty Publications

The judicial vacancy crisis must end. The federal bench has experienced nearly a ten percent vacancy rate over an unprecedented four and a half-year period. The substantial number and protracted character of those openings have imposed numerous detrimental effects. These phenomena have delayed the scheduling of jury trials in many civil cases and even propelled termination of some litigation because the Speedy Trial Act requires that criminal matters have precedence. Indeed, the emergency designation has meant that some criminal proceedings were delayed in the Arizona District. The vacancy crisis places additional pressure on sitting judges, particularly the eight senior judges …

Ghana’S Jury System On Trial, Dennis D. Adjei

Duke Law Master of Judicial Studies Theses

Civil cases in Ghana are tried by the bench. Criminal cases are also handled by bench trials, except for certain indictable offenses, which may be tried by a judge or jury. Not all serious offenses are tried by jury. And a trend is developing away from jury to bench trials. For example, treason is punishable by death, but the case is determined in a bench trial by three High Court Judges. Robbery, which had been an indictable offense, is now tried by either jury or bench trial at the discretion of the Attorney-General; and prosecutors consistently have been opting for …

Leadership And Management Training In The North Carolina Judicial System: An Examination Of Identified Need, James E. Hardin Jr.

Duke Law Master of Judicial Studies Theses

The purpose of this paper is to ask whether North Carolina public service lawyers and judges believe that their judicial districts perform with maximum efficiency or whether there could be functional improvement with leadership and management training for system leaders, and with the perceived need of such training, as articulated by these professionals, what a general training model might look like. A brief examination of the institutionally provided leadership and management training offered to system leaders shows sparse resources are expended to develop leaders and train them so that they have the skills to direct individual organizations and change the …

Pivoting To Progressivism: Justice Stephen J. Chadwick, The Washington Supreme Court And Change In Early Twentieth Century Judicial Reasoning And Rhetoric, Hugh D. Spitzer

Articles

Relatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century in a period when the United States Supreme Court often overturned reform measures on constitutional grounds. In contrast, between 1910 and 1913, the Washington State Supreme Court rapidly changed its doctrinal analysis and its stance on judicial deference to elected lawmakers, aligning the state’s constitutional law with the public’s new views on the responsibility of government in addressing social and economic challenges. A fascinating window on the progressive period and changes in judicial reasoning and rhetoric is provided …

Tribute To Justice Rosalie Wahl, Harriet Lansing

William Mitchell Law Review

No abstract provided.

Tribute To Justice Rosalie Wahl, Eric S. Janus

William Mitchell Law Review

No abstract provided.

Avoiding Adversarial Adjudication, Michael T. Morley

Scholarly Publications

There are a variety of procedural vehicles through which litigants may seek a substantive court ruling or order that declares or modifies their legal rights and obligations without actually litigating the merits of a case as a whole or particular issues within the case. These alternatives include defaults, failures to oppose motions for summary judgment, waivers and forfeitures, stipulations of law, confessions of error, and consent decrees. Courts presently apply different standards in determining whether to accept or allow litigants to take advantage of each of these vehicles for avoiding adversarial adjudication. Because all of these procedural alternatives share the …

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially …

The Philosophy And Jurisprudence Of Chief Justice Roberts, Kiel Brennan-Marquez

Utah Law Review

A thicket of commentary has blossomed around the figure of Chief Justice Roberts. The bulk of it, however, has either focused exclusively on his role in the 2011 term or has lumped him in uncritically with the Court’s conservative wing. In response, this Article takes a wider view of his tenure, arguing that Chief Justice Roberts is best understood as an idealist, a true believer in the rule of law, with a special sensitivity toward issues of constitutional structure. In the first Part of the Article, I explore Chief Justice Roberts’s penchant for infusing his opinions with “teaching moments”—a tendency …

Judging Justice On Appeal, Marin K. Levy

Faculty Scholarship

No abstract provided.

Commentary: Reflections On Remorse, Stephen J. Morse

All Faculty Scholarship

This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.

Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain

Publications

No abstract provided.

Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen

Mathilde Cohen

Justice Joseph T. Walsh: Teacher, Lawrence A. Hamermesh

Lawrence A. Hamermesh

No abstract provided.

Decorating The Structure: The Art Of Making Human Law, Brian M. Mccall

Brian M McCall