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- Articles (17)
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- Curtis E.A. Karnow (1)
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- The National Forest Management Act in a Changing Society, 1976-1996: How Well Has It Worked in the Past 20 Years?: Will It Work in the 21st Century? (September 16-18) (1)
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Articles 1 - 30 of 42
Full-Text Articles in Law
The Legal Significance Of Custom In The Halakhic Jurisprudence Of Rabbi Yechiel Mikhel Epstein’S Arukh Hashulchan, Shlomo C. Pill, Michael J. Broyde
The Legal Significance Of Custom In The Halakhic Jurisprudence Of Rabbi Yechiel Mikhel Epstein’S Arukh Hashulchan, Shlomo C. Pill, Michael J. Broyde
Touro Law Review
No abstract provided.
Targeting Poverty In The Courts: Improving The Measurement Of Ability To Pay, Meghan M. O'Neil, Jj Prescott
Targeting Poverty In The Courts: Improving The Measurement Of Ability To Pay, Meghan M. O'Neil, Jj Prescott
Law & Economics Working Papers
Ability-to-pay determinations are essential when governments use money-based alternative sanctions, like fines, to enforce laws. One longstanding difficulty in the U.S. has been the extreme lack of guidance on how courts are to determine a litigant’s ability to pay. The result has been a seat-of-the-pants approach that is inefficient and inaccurate, and, as a consequence, very socially costly. Fortunately, online platform technology presents a promising avenue for reform. In particular, platform technology offers the potential to increase litigant access, reduce costs, and ensure consistent and fair treatment—all of which should lead to more accurate sanctions. We use interviews, surveys, and …
The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley
The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley
Publications
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, bias, emotion, …
Remedial Restraint In Administrative Law, Nicholas Bagley
Remedial Restraint In Administrative Law, Nicholas Bagley
Articles
When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly …
Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart
Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart
Michigan Journal of International Law
Part I of this article traces the historical trends in the use of expert evidence in international disputes, from the scattered reliance on experts in the nineteenth and early twentieth centuries to the ubiquity of experts in modern disputes. With that perspective, Part II examines how decision makers have attempted to ensure reliability of the expert evidence that is flooding the evidentiary records of international disputes, while Part III outlines the many problems that still remain. Finally, Part IV proposes a non-exhaustive and nonbinding checklist of questions for analyzing the reliability of any type of expert evidence.
Deciding, Curtis E.A. Karnow
Deciding, Curtis E.A. Karnow
Curtis E.A. Karnow
Review of cognitive fallacies judges may encounter, such as expectation fallacies, cognitive dissonance, narrative fallacies and generally problems with associative reasoning
Jury Voting Paradoxes, Jason Iuliano
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 …
Substantive Habeas, Kimberly A. Thomas
Substantive Habeas, Kimberly A. Thomas
Articles
Substantive Habeas identifies the US. Supreme Court's recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the US. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decision making until recently. Over the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of habeas. …
Judicial Independence And Social Welfare, Michael D. Gilbert
Judicial Independence And Social Welfare, Michael D. Gilbert
Michigan Law Review
Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and resolve cases impartially and in accordance with law. Yet independence comes with a hazard. Precisely because they are independent, judges can ignore law and pursue private agendas. For two centuries, scholars have debated those ideas and the underlying tradeoff: independence versus accountability. They have achieved little consensus, in part because independence raises difficult antecedent questions. We cannot decide how independent to make a judge until we agree on what a judge is supposed to do. That depends on one’s views about …
Antitrust And The Judicial Virtues, Daniel A. Crane
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, …
Understanding The Value Of Judicial Diversity Through The Native American Lens, Paige E. Hoster
Understanding The Value Of Judicial Diversity Through The Native American Lens, Paige E. Hoster
American Indian Law Review
No abstract provided.
Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus
Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus
Reviews
Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contribution to the literature by refocusing attention on the importance of misdemeanor offenses and beginning an important dialogue about what steps should be taken going forward to fix our broken misdemeanor justice system.
How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus
How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus
Articles
For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the …
Stare Decisis And Constitutional Text, Jonathan F. Mitchell
Stare Decisis And Constitutional Text, Jonathan F. Mitchell
Michigan Law Review
Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher
Faculty Scholarship
No abstract provided.
Ask And What Shall Ye Receive? A Guide For Using And Interpreting What Jurors Tell Us, Barbara O'Brien, Samuel R. Sommers, Phoebe C. Ellsworth
Ask And What Shall Ye Receive? A Guide For Using And Interpreting What Jurors Tell Us, Barbara O'Brien, Samuel R. Sommers, Phoebe C. Ellsworth
Articles
We review the extensive body of studies relying on jurors' self-reports in interviews or questionnaires, with a focus on potential threats to validity for researchers seeking to answer particularly provocative questions such as the influence of race in jury decision-making. We then offer a more focused case study comparison of interview and questionnaire data with behavioral data in the domain of race and juror decision-making. Our review suggests that the utility of data obtained from juror interviews and questionnaire responses varies considerably depending on the question under investigation. We close with an evaluation of the types of empirical questions most …
Super Deference, The Science Obsession, And Judicial Review As Translation Of Agency Science, Emily Hammond Meazell
Super Deference, The Science Obsession, And Judicial Review As Translation Of Agency Science, Emily Hammond Meazell
Michigan Law Review
This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …
Judicial Independence And Company Law In The Shanghai People's Courts, 1992-2008, Nicholas C. Howson
Judicial Independence And Company Law In The Shanghai People's Courts, 1992-2008, Nicholas C. Howson
Book Chapters
This chapter draws on a detailed study of corporate law adjudication in Shanghai from 1992 to 2008. The purpose of the study was to better understand the demonstrated technical competence, institutional autonomy, and political independence of one court system in the People's Republic of China ("PRC") in a sector outside of the criminal law. The study consisted of a detailed examination and comparison of full-length corporate law opinions for more than 200 reported cases, a 2003 Shanghai High Court opinion on the 1994 Company Law (describing a decade of corporate case outcomes), a 2007 report on cases implementing the Company …
Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson
Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson
Articles
In late 2005 China adopted a largely rewritten Company Law that radically increased the role of courts. This study, based on a review of more than 1000 Company Law-related disputes reported between 1992 and 2008 and extensive interactions with PRC officials and sitting judges, evaluates how the Shanghai People's Court system has fared over 15 years in corporate law adjudication. Although the Shanghai People's Courts show generally increasing technical competence and even intimations of political independence, their path toward institutional autonomy is inconsistent. Through 2006, the Shanghai Court system demonstrated significantly increased autonomy. After 2006 and enactment of the new …
Will Quants Rule The (Legal) World?, Edward K. Cheng
Will Quants Rule The (Legal) World?, Edward K. Cheng
Michigan Law Review
The quants are coming! And they are here to stay-so argues Professor Ian Ayres' in his new book, Super Crunchers, which details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. To be …
How Should We Study District Judge Decision-Making?, Pauline T. Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin
How Should We Study District Judge Decision-Making?, Pauline T. Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin
Articles
Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. The choices available to judges are determined not only by the law and facts of the case but also by procedural context. The incentives and constraints shaping judges’ decision-making will vary depending on, for example, whether they have a life-appointment or are elected; whether they hear cases alone or with colleagues; and whether and under what circumstances their decisions might be altered, overturned, or undone by the actions of others. The basic insight that the institutional context matters has led to increasingly sophisticated studies of how …
Competition In The Courtroom: When Does Expert Testimony Improve Jurors’ Decisions?, Cheryl Boudreau, Mathew D. Mccubbins
Competition In The Courtroom: When Does Expert Testimony Improve Jurors’ Decisions?, Cheryl Boudreau, Mathew D. Mccubbins
Faculty Scholarship
Many scholars lament the increasing complexity of jury trials and question whether the testimony of competing experts helps unsophisticated jurors to make informed decisions. In this article, we analyze experimentally the effects that the testimony of competing experts has on (1) sophisticated versus unsophisticated subjects' decisions and (2) subjects' deci- sions on difficult versus easy problems. Our results demonstrate that competing expert testimony, by itself, does not help unsophisticated subjects to behave as though they are sophisticated, nor does it help subjects make comparable decisions on difficult and easy problems. When we impose additional institutions (such as penalties for lying …
Judicial Oversight Over The Interstate Placement Of Foster Children: The Missing Element In Current Efforts To Reform The Interstate Compact On The Placement Of Children, Vivek Sankaran
Articles
This article argues that current efforts to reform the Compact are flawed because they lack an essential element: judicial oversight of agency decision-making. The first section explores the important role that juvenile court judges play in making placement decisions for foster children. Next, an examination of the current problems in the interstate placement process demonstrates the vital need for judicial oversight of the system. Finally, a specific proposal is put forth on how best to incorporate judicial oversight without interfering with the sovereignty of states.
Incorporating A 'Best Interests Of The Child' Approach Into Immigration Law And Procedure, Bridgette A. Carr
Incorporating A 'Best Interests Of The Child' Approach Into Immigration Law And Procedure, Bridgette A. Carr
Articles
United States immigration law and procedure frequently ignore the plight of children directly affected by immigration proceedings. This ignorance means decision-makers often lack the discretion to protect a child from persecution by halting the deportation of a parent, while parents must choose between abandoning their children in a foreign land and risking the torture of their children. United States immigration law systematically fails to consider the best interests of children directly affected by immigration proceedings. This failure has resulted in a split among the federal circuit courts of appeals regarding whether the persecution a child faces may be used to …
Nothing But The Truth? Experiments On Adversarial Competition, Expert Testimony, And Decision Making, Cheryl Boudreau, Mathew D. Mccubbins
Nothing But The Truth? Experiments On Adversarial Competition, Expert Testimony, And Decision Making, Cheryl Boudreau, Mathew D. Mccubbins
Faculty Scholarship
Many scholars debate whether a competition between experts in legal, political, or economic contexts elicits truthful information and, in turn, enables people to make informed decisions. Thus, we analyze experimentally the conditions under which competition between experts induces the experts to make truthful statements and enables jurors listening to these statements to improve their decisions. Our results demonstrate that, contrary to game theoretic predictions and contrary to critics of our adversarial legal system, competition induces enough truth telling to allow jurors to improve their decisions. Then, when we impose additional institutions (such as penalties for lying or the threat of …
"The Threes": Re-Imagining Supreme Court Decisionmaking, Chris Guthrie, Tracey E. George
"The Threes": Re-Imagining Supreme Court Decisionmaking, Chris Guthrie, Tracey E. George
Vanderbilt Law School Faculty Publications
In this Essay--the first in a series of essays designed to reimagine the Supreme Court--we argue that Congress should authorize the Court to adopt, in whole or part, panel decision making... With respect to the prospect of different Court outcomes, we demonstrate empirically in this Essay that the vast majority of cases decided during the late twentieth and early twenty-first centuries--including "Grutter", "Roe", and "Bush v. Gore" --would have come out the same way if the Court had decided them in panels rather than as a full Court.
The Riddle Of Hiram Revels, Richard A. Primus
The Riddle Of Hiram Revels, Richard A. Primus
Articles
In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …
Chevron And Preemption, Nina A. Mendelson
Chevron And Preemption, Nina A. Mendelson
Articles
This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …
How Much Do We Really Know About Race And Juries? A Review Of Social Science Theory And Research, Samuel R. Sommers, Phoebe C. Ellsworth
How Much Do We Really Know About Race And Juries? A Review Of Social Science Theory And Research, Samuel R. Sommers, Phoebe C. Ellsworth
Articles
The past decade has witnessed numerous high-profile criminal trials in which controversial verdicts have been attributed to racethe race of the defendant, the racial composition of a jury, an attorney "playing the race card," and so on. A predominantly Black jury's acquittal of O.J. Simpson and White jurors' leniency in the police brutality cases of Rodney King and Amadou Diallo not only sparked public debate, but also led to rioting and violence. In the wake of trials such as these, many have questioned the viability of the American jury system.' More specific questions regarding the influence of race on jury …
Race In The Courtroom: Perceptions Of Guilt And Dispositional Attributions, Samuel R. Sommers, Phoebe C. Ellsworth
Race In The Courtroom: Perceptions Of Guilt And Dispositional Attributions, Samuel R. Sommers, Phoebe C. Ellsworth
Articles
The present studies compare the judgments of White and Black mock jurors in interracial trials. In Study 1, the defendant’s race did not influence White college students’ decisions but Black students demonstrated ingroup/outgroup bias in their guilt ratings and attributions for the defendant’s behavior. The aversive nature of modern racism suggests that Whites are motivated to appear nonprejudiced when racial issues are salient; therefore, the race salience of a trial summary was manipulated and given to noncollege students in Study 2. Once again, the defendant’s race did not influence Whites when racial issues were salient. But in the non-race-salient version …