Judges Commons^™

Jury Voting Paradoxes, Jason Iuliano

Michigan Law Review

The special verdict is plagued by two philosophical paradoxes: the discursive dilemma and the lottery paradox. Although widely discussed in the philosophical literature, these paradoxes have never been applied to jury decision making. In this Essay, I use the paradoxes to show that the special verdict’s vote-reporting procedures can lead judges to render verdicts that the jurors themselves would reject. This outcome constitutes a systemic breakdown that should not be tolerated in a legal system that prides itself on the fairness of its jury decision-making process. Ultimately, I argue that, because the general verdict with answers to written questions does …

Foreword: The Question Of Process, J. Harvie Wilkinson Iii

Michigan Law Review

Many in the legal profession have abandoned the great questions of legal process. This is too bad. How a decision is reached can be as important as what the decision is. In an increasingly diverse country with many competing visions of the good, it is critical for law to aspire to agreement on process - a task both more achievable than agreement on substance and more suited to our profession than waving the banners of ideological truth. By process, I mean the institutional routes by which we in America reach our most crucial decisions. In other words, process is our …

Ignorance Of Law Is An Excuse - But Only For The Virtuous, Dan M. Kahan

Michigan Law Review

It's axiomatic that "ignorance of the law is no excuse." My aim in this essay is to examine what the "mistake of law doctrine" reveals about the relationship between criminal law and morality in general and about the law's understanding of moral responsibility in particular. The conventional understanding of the mistake of law doctrine rests on two premises, which are encapsulated in the Holmesian epigrams with which I've started this essay. The first is liberal positivism. As a descriptive claim, liberal positivism holds that the content of the law can be identified without reference to morality: one needn't be a …

Practical Legal Studies And Critical Legal Studies, Jay M. Feinman

Michigan Law Review

The basic questions that Practical Legal Studies confronts are how judges decide cases and how judges should decide cases. The traditional analytic response to these questions has been that judges apply formal methods of legal reasoning, and the formal methods sufficiently comport with the courts' role in the political structure to provide legitimacy. That response has been untenable for a generation or more; thus PLS has moved to informal legal reasoning as a description of adjudication and as a source of legitimacy.

Posner presents a two-part response to the questions. First, judges can relatively easily arrive at the correct decision …

Judge Posner's Jurisprudence Of Skepticism, Steven J. Burton

Michigan Law Review

This essay suggests that there is an instructive incompleteness in Judge Posner's transition from scientific observer to legal actor. His legal skepticism should be understood as a legacy of his days as an inquiring economist, observing and forming beliefs about law and the judicial process from the academy. His affirmation of judicial practices stems from his new respect for practical reason, which seems to result from the experience of performing judicial duties. This essay will argue that a more complete assimilation of the practical perspective of the legal actor would undercut Judge Posner's arguments for legal skepticism.

Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute, E. Philip Soper

Michigan Law Review

This article offers a review of the Hart-Dworkin dispute and a qualified defense of the positivist's model against Dworkin's attack. The defense is cast primarily in the form of the second possible response to a descriptive theory: Dworkin's attack fails, I suggest, because it involves descriptive claims that can be accommodated to the positivist's conceptual theory regardless of one's view about the plausibility of those claims.

The Rule Of Law And The Judicial Process, Luke K. Cooperrider

Michigan Law Review

An anecdote which I believe I recall from one of Professor Brogan's ·writings concerns a conversation between the archbishop and the chief justice about the relative importance of their respective powers. After the conversation had continued for some time the archbishop sought to administer the coup de grâce. "I have the advantage of you, your lordship, because you see, in the long run, the most you can say to a man is, 'You shall be hanged!' whereas it is within the functions of my office to say, 'You shall be damned!' " To this, after a moment of thought, …

Book Reviews, Nathan Isaacs, Horace Lafayette Wilgus, Arthur H. Basye, Leonard D. White, Victor H. Lane, Edwin D. Dickinson

Michigan Law Review

What does a judge do when he decides a case? It would be interesting to collect the answers ranging from those furnished by primitive systems of law in which the judge was supposed to consult the gods to the ultra-modern, rather profane system described to me recently by a retrospective judge: "I make up my mind which way the case ought to be decided, and then I see if I can't get some legal ground to make it stick." Perhaps the widespread impression is the curiously erroneous one lampooned by Gnaeus Flavius (Kantorowitz). The judge is supposed to sit at …