Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Law
Comment On 'Judicial Compensation And Performance', J.J. Prescott
Comment On 'Judicial Compensation And Performance', J.J. Prescott
Articles
The most significant challenges to better understanding judicial behavior are lack of data and the absence of plausible exogenous variation in judicial environments. The random assignment of judges to cases has admittedly been helpful in gaining traction on the effects of judicial decisions (e.g., Dobbie, Goldin, and Yang 2018). Yet developing a full empirical account of “what judges maximize” (Posner 1993) would require a setting in which judges are randomly subjected to a wide variety of (real-world) environments with different costs, constraints, and rewards. This prospect remains pie in the sky, but that does not mean that we have not …
Doctrinal Reasoning As A Disruptive Practice, Jessie Allen
Doctrinal Reasoning As A Disruptive Practice, Jessie Allen
Articles
Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.