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The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley Jan 2018

The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley

Articles

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second ...


Amending Codes Of Judicial Conduct To Impose Campaign Contribution And Expenditure Limits On Judicial Campaigns, Hugh D. Spitzer, Philip A. Talmadge Jan 2018

Amending Codes Of Judicial Conduct To Impose Campaign Contribution And Expenditure Limits On Judicial Campaigns, Hugh D. Spitzer, Philip A. Talmadge

Articles

Every judicial campaign year, millions of dollars pour into individual court races around the country. The bulk of that money is donated by lawyers, businesses, and others with financial interests in how judges, especially appellate judges, decide cases. United States Supreme Court rulings on political contributions and spending have hamstrung the ability of states to control larges-cale expenditures in judicial races. This essay reviews empirical research by political scientists who have documented the effect of large campaign donations on how judges decide cases and on the public's perception of court impartiality. It describes how legislatures and courts have addressed ...


Posner Tackles The Pro Se Prisoner Problem: A Book Review Of "Reforming The Federal Judiciary", Katherine Macfarlane Jan 2018

Posner Tackles The Pro Se Prisoner Problem: A Book Review Of "Reforming The Federal Judiciary", Katherine Macfarlane

Articles

No abstract provided.


(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton Jan 2018

(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton

Articles

Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of delivery ...


Judge Kozinski Objects, Beth H. Wilensky Sep 2017

Judge Kozinski Objects, Beth H. Wilensky

Articles

Sitting judges don’t get to practice law. So although they often opine on the dos and don’ts of effective advocacy, we rarely get to see them put their advice into practice. But a few years ago, a class-action lawsuit provided the rare opportunity to witness a federal judge acting as an advocate before another federal judge—if not in the role of attorney, then certainly in as close to that role as we are likely to see. Given the chance to employ his own advice about effective advocacy, would the judge—Alex Kozinski—practice what he preaches? Would ...


Rethinking Criminal Contempt, John A.E. Pottow, Jason S. Levin May 2017

Rethinking Criminal Contempt, John A.E. Pottow, Jason S. Levin

Articles

It is of course too early to tell whether we are in a new era of bankruptcy judge (dis)respectability. Only time will tell. But this Article performs a specific case study, on one discrete area of bankruptcy court authority, based upon a particular assumption in that regard. The assumption is this: certain high-salience judicial events-here, the recent Supreme Court bankruptcy judge decisions, coupled with earlier constitutional precedents involving the limits of Article III-can trigger overreaction and hysteria. Lower courts may read these Supreme Court decisions as calling into question the permissibility of certain bankruptcy court practices under the Constitution ...


A Prescription For Overcoming Gender Inequity In Complex Litigation: An Idea Whose Time Has Come, Suzette M. Malveaux Jan 2017

A Prescription For Overcoming Gender Inequity In Complex Litigation: An Idea Whose Time Has Come, Suzette M. Malveaux

Articles

No abstract provided.


Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss Jan 2017

Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

Articles

No abstract provided.


The Sec, Administrative Usurpation, And Insider Trading, Adam C. Pritchard Oct 2016

The Sec, Administrative Usurpation, And Insider Trading, Adam C. Pritchard

Articles

The history of insider trading law is a tale of administrative usurpation and legislative acquiescence. Congress has never enacted a prohibition against insider trading, much less defined it. Instead, the SEC has led in defining insider trading, albeit without the formality of rulemaking, and subject to varying degrees of oversight by the courts. The reason why lies in the deference that the Supreme Court gave to the SEC in its formative years. The roots of insider trading law are commonly traced to the SEC’s decision in Cady, Roberts & Co. Cady, Roberts was only made possible, however, by the Supreme ...


Response, Values And Assumptions In Criminal Adjudication, Benjamin Levin Jan 2016

Response, Values And Assumptions In Criminal Adjudication, Benjamin Levin

Articles

This Response to Andrew Manuel Crespo's Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s ...


Robots As Legal Metaphors, Ryan Calo Jan 2016

Robots As Legal Metaphors, Ryan Calo

Articles

This Article looks at the specific role robots play in the judicial imagination. The law and technology literature is replete with examples of how the metaphors and analogies that courts select for emerging technology can be outcome determinative. Privacy law scholar Professor Daniel Solove argues convincingly, for instance, that George Orwell's Big Brother metaphor has come to dominate, and in ways limit, privacy law and policy in the United States. Even at a more specific, practical level, whether a judge sees email as more like a letter or a postcard will dictate the level of Fourth Amendment protection she ...


On Legal Scholarship: Questions For Judge Harry T. Edwards, Ronald K.L. Collins Jan 2016

On Legal Scholarship: Questions For Judge Harry T. Edwards, Ronald K.L. Collins

Articles

The life of Judge Harry T. Edwards is one very much steeped in writing. His passion dates back at least to his years at Uniondale High School when he was the editor of the school newspaper. In the legal realm, that passion traces back to 1964 and his days on the Michigan Law Review when he published two student Notes. In the half-century since then, Judge Edwards has authored six books and more than 90 scholarly articles or essays. As a lawyer, educator, administrator, arbitrator, and now jurist, Harry Edwards has put his ideas into print concerning an array of ...


Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus Jan 2016

Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus

Articles

In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method ...


Dirks And The Genesis Of Personal Benefit, Adam C. Pritchard Jun 2015

Dirks And The Genesis Of Personal Benefit, Adam C. Pritchard

Articles

In United States v. Newman, the Second Circuit overturned the insider trading convictions of two hedge fund managers who received material nonpublic information from public companies via an extended tipping chain. The Newman court interpreted the Supreme Court's decision in Dirks v. SEC as requiring that the government prove: (1) that the tippee knew that the tipper was disclosing the information in exchange for a personal benefit; and (2) that if the personal benefit does not involve a quid pro quo to the tipper, that the disclosure arise from a "meaningfully close personal relationship" with the recipient of the ...


Revising Civil Rule 56: Judge Mark R. Kravitz And The Rules Enabling Act, Edward H. Cooper Oct 2014

Revising Civil Rule 56: Judge Mark R. Kravitz And The Rules Enabling Act, Edward H. Cooper

Articles

This contribution uses the history of amending Federal Rule of Civil Procedure 56, “Summary Judgment,” to pay tribute to Mark R. Kravitz and to the Rules Enabling Act process itself. The three central examples involve discretion to deny summary judgment despite the lack of a genuine dispute as to any material fact, the choice whether to prescribe a detailed “point–counterpoint” procedure for presenting and opposing the motion, and the effect of failure to respond to a motion in one of the modes prescribed by the rule. These topics are intrinsically important. The ways in which the Civil Rules Advisory ...


The Judge And The Drone, Justin Desautels-Stein Jan 2014

The Judge And The Drone, Justin Desautels-Stein

Articles

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the ...


Machine Learning And Law, Harry Surden Jan 2014

Machine Learning And Law, Harry Surden

Articles

This Article explores the application of machine learning techniques within the practice of law. Broadly speaking “machine learning” refers to computer algorithms that have the ability to “learn” or improve in performance over time on some task. In general, machine learning algorithms are designed to detect patterns in data and then apply these patterns going forward to new data in order to automate particular tasks. Outside of law, machine learning techniques have been successfully applied to automate tasks that were once thought to necessitate human intelligence — for example language translation, fraud-detection, driving automobiles, facial recognition, and data-mining. If performing well ...


Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain Jan 2014

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

Articles

No abstract provided.


Judges And Their Papers, Kathryn A. Watts Jan 2013

Judges And Their Papers, Kathryn A. Watts

Articles

Who should own a federal judge’s papers?

This question has rarely been asked. Instead, it has generally been accepted that the Justices of the U.S. Supreme Court and other federal judges own their working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues such as abortion and flag ...


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 ...


On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi Jan 2013

On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi

Articles

In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising ...


Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi Jan 2013

Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi

Articles

This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal ...


The Judicial Assault On The Clean Water Act, Mark Squillace Jan 2012

The Judicial Assault On The Clean Water Act, Mark Squillace

Articles

No abstract provided.


The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks Jan 2012

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Articles

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.


Understanding The United States' Incarceration Rate, William T. Pizzi Jan 2012

Understanding The United States' Incarceration Rate, William T. Pizzi

Articles

What has caused prison sentences to climb so sharply and consistently in the last four decades?


Justice Stevens's Black Leather Arm Chair, Kathryn A. Watts Jan 2012

Justice Stevens's Black Leather Arm Chair, Kathryn A. Watts

Articles

As a law clerk to Justice Stevens in the October Term 2002, I felt that the very best part of the job came almost every afternoon. Without any advance warning, the Justice would get up from his desk and walk through chambers to the law clerks’ main office and plop down into a well-worn black leather arm chair that formed part of a cozy seating area flanked by tall bookshelves filled with volumes of case reporters and the United States Code.

As soon as the Justice started settling himself into his arm chair, my co-clerks and I all knew that ...


The Loss Of Constitutional Faith: Mccleskey V. Kemp And The Dark Side Of Procedure, Scott E. Sundby Jan 2012

The Loss Of Constitutional Faith: Mccleskey V. Kemp And The Dark Side Of Procedure, Scott E. Sundby

Articles

No abstract provided.


The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar Jan 2012

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4


Book Review, Derek Kiernan-Johnson Jan 2011

Book Review, Derek Kiernan-Johnson

Articles

No abstract provided.


Lies, Damned Lies, And Judicial Empathy, Mary Anne Franks Jan 2011

Lies, Damned Lies, And Judicial Empathy, Mary Anne Franks

Articles

No abstract provided.