Law Commons^™

City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello

Adam Lamparello

Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question—and the proverbial elephant in the room—is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway. Put differently, a hotel owner’s expectation of privacy in a guest registry …

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Touro Law Review

No abstract provided.

Dicta And The Rule Of Law, Ryan S. Killian

Pepperdine Law Review

This Essay is about dicta. Like Olson, the Essay will not spend much time arguing about the definition of dicta. Rather, it analyzes rule of law issues as they pertain to dicta. Does the definition of dicta matter? Does reliance on dicta by subsequent courts raise rule of law concerns? The answer to both questions is yes.

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Jeffrey J. Rachlinski

Many people rely on mental shortcuts, or heuristics, to make complex decisions, but this sometimes leads to inaccurate inferences, or cognitive illusions. A recent study suggests such cognitive illusions influence judicial decision making.

Inside The Bankruptcy Judge's Mind, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Jeffrey J. Rachlinski

In this paper, we extend our prior work on generalist judges to explore whether specialization leads to superior judicial decision making. To do so, we report the results of a study of federal bankruptcy judges. In one prior study of bankruptcy judges, Ted Eisenberg reported evidence suggesting that bankruptcy judges, like generalist judges, are susceptible to the "self-serving" or "egocentric" bias when making judgments. Here, we report evidence showing that bankruptcy judges are vulnerable to anchoring and framing effects, but appear largely unaffected by the omission bias, a debtor's race, a debtor's apology, and "terror management" or "mortality salience."' Because …

Heuristics And Biases In Bankruptcy Judges, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Jeffrey J. Rachlinski

Do specialized judges make better decisions than judges who are generalists? Specialized judges surely come to know their area of law well, but specialization might also allow judges to develop better, more reliable ways of assessing cases. We assessed this question by presenting a group of specialized judges with a set of hypothetical cases designed to elicit a reliance on common heuristics that can lead judges to make poor decisions. Although the judges resisted the influence of some of these heuristics, they also expressed a clear vulnerability to others. These results suggest that specialization does not produce better judgment.

A Positive Psychological Theory Of Judging In Hindsight, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Jeffrey J. Rachlinski

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Cognitive Errors, Individual Differences, And Paternalism, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Legal scholars commonly argue that the widespread presence of cognitive errors in judgment justifies legal intervention to save people from predictable mistakes. Such arguments often fail to account for individual variation in the commission of such errors even though individual variation is probably common. If predictable groups of people avoid making the errors that others commit, then law should account for such differences because those who avoid errors will not benefit from paternalistic interventions and indeed may be harmed by them. The research on individual variation suggests three parameters that might distinguish people who can avoid error: cognitive ability, experience …

Altering Attention In Adjudication, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Jeffrey J. Rachlinski

Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when …

Contrition In The Courtroom: Do Apologies Affect Adjudication?, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Jeffrey J. Rachlinski

Apologies usually help to repair social relationships and appease aggrieved parties. Previous research has demonstrated that in legal settings, apologies influence how litigants and juries evaluate both civil and criminal defendants. Judges, however, routinely encounter apologies offered for instrumental reasons, such as to reduce a civil damage award or fine, or to shorten a criminal sentence. Frequent exposure to insincere apologies might make judges suspicious of or impervious to apologies. In a series of experimental studies with judges as research participants, we find that in some criminal settings, apologies can induce judges to be more lenient, but overall, apologizing to …

Judicial Reform, Constitutionalism And The Rule Of Law In Zambia: From A Justice System To A Just System, Muna Ndulo

Muna B Ndulo

In Zambia it is generally agreed on by all stakeholders that the judicial system needs reform to make it more accountable, independent, and able to deliver justice efficiently and effectively. This article discusses judicial reform in the context of the independence of the judiciary. It tries to unpack the term judicial reform. It argues that for the rule of law and constitutionalism to prevail it is crucial that the judiciary is independent and there is separation of powers between the executive and the judiciary, and legislature and the judiciary. For judges to be personally and substantively independent they need security …

Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Sheri Lynn Johnson

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.

Justice Blackmun's Federal Tax Jurisprudence, Robert A. Green

Robert A. Green

During his tenure on the Supreme Court, Justice Blackmun was widely regarded as the Court's authority on tax matters. Justice Blackmun viewed tax law not merely as a technical specialty, but as a microcosm of the legal system. His numerous tax opinions involve a wide range of issues of constitutional law, criminal law, administrative procedure, court procedure, and statutory interpretation. This Article begins by discussing two of Justice Blackmun's tax opinions involving constitutional issues. Justice Blackmun refused to create special constitutional rules for tax cases. Instead, he applied generally applicable principles, but with great sensitivity to how those principles would …

Words That Deny, Devalue, And Punish: Judicial Responses To Fetus-Envy?, Sherry F. Colb

Sherry Colb

Abstract needed.

Breakfast With Justice Blackmun, Sherry F. Colb

Sherry Colb

No abstract provided.

Xenophilia In American Courts, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

Foreigner! The word says it all. Verging on the politically incorrect, the expression is full of connotation and implication. A foreigner will face bias. By such a thought process, many people believe that litigants have much to fear in courts foreign to them. In particular, non-Americans fare badly in American courts. Foreigners believe this. Even Americans believe this. Such views about American courts are understandable. After all, the grant of alienage jurisdiction to the federal courts, both original and removal, constitutes an official assumption that xenophobic bias is present in state courts. As James Madison said of state courts: “We …

Exorcising The Evil Of Forum-Shopping, Kevin Clermont, Theodore Eisenberg

Kevin M. Clermont

Most of the business of litigation comprises pretrial disputes. A common and important dispute is over where adjudication should take place. Civil litigators deal with nearly as many change-of-venue motions as trials. The battle over venue often constitutes the critical issue in a case. The American way is to provide plaintiffs with a wide choice of venues for suit. But the American way has its drawbacks. To counter these drawbacks, an integral part of our court systems, and in particular the federal court system, is the scheme of transfer of venue "in the interest of justice." However, the leading evaluative …

Trial By Jury Or Judge: Which Is Speedier?, Theodore Eisenberg, Kevin Clermont

Kevin M. Clermont

Many take as a given that jury-tried cases consume more time than judge-tried cases. Judge Richard Posner of the Seventh Circuit, for example, opines: “Court queues are almost always greatest for parties seeking civil jury trials. This makes economic sense. Such trials are more costly than bench trials both because of jury fees (which … understate the true social costs of the jury) and because a case normally takes longer to try to a jury than to a judge …. Parties are therefore “charged” more for jury trials by being made to wait in line longer.” A close reading reveals …

Courts In Cyberspace, Theodore Eisenberg, Kevin M. Clermont

Kevin M. Clermont

No abstract provided.

Trial By Jury Or Judge: Transcending Empiricism, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

Pity the civil jury, seen by some as the sickest organ of a sick system. Yet the jury has always been controversial. One might suppose that, with so much at stake for so long, we would all know a lot about the ways juries differ from judges in their behavior. In fact, we know remarkably little. This Article provides the first large-scale comparison of plaintiff win rates and recoveries in civil cases tried before juries and judges. In two of the most controversial areas of modern tort law--product liability and medical malpractice--the win rates substantially differ from other cases' win …

The Legacy Of Anthony M. Kennedy, Adam Lamparello

Adam Lamparello

The defining moments in Justice Kennedy’s tenure on the Court came in Planned Parenthood, Lawrence, and United States v. Windsor, where the Court did to the Constitution—in the name of liberty—what it also did—in the name of democracy—to Florida’s citizens in Bush v. Gore. In all three cases, Justice Kennedy’s reliance on a broad conception of liberty, rather than equal protection principles, shifted the balance too heavily in favor of judicial, rather democratic, creation of unenumerated fundamental rights.

Justice Kennedy will rightly be celebrated for safeguarding reproductive freedom and championing sexual autonomy for same-sex couples, but underneath the black …

Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Is It Law Or Something Else?: A Divided Judiciary In The Application Of Fraudulent Transfer Law Under § 546(E) Of The Bankruptcy Code, Jaclyn Weissgerber

Pace Law Review

In Part I of this Note, I will provide a general overview of leveraged buyouts. The discussion of how and why LBOs are implemented is particularly relevant to the application of fraudulent transfer analysis. In Part II, I will discuss fraudulent transfer law as defined by the Bankruptcy Code. In Part III, I will discuss which transfers within the LBO should be attacked under fraudulent transfer law and why; this section will focus on the various stakes of the parties involved in the leveraged buyout transaction. I will provide an overview of the specific factors that bankruptcy and federal appellate …

Protecting Human Rights: The Approach Of The Singapore Courts, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

The Constitution is the supreme law of Singapore, but have the courts unnecessarily limited their role of upholding the Constitution? This article is based on a speech delivered at an event at the Conrad Centennial Singapore on 4 December 2014 entitled The Role of the Judiciary in the Promotion and Protection of Human Rights organized by the Delegation of the European Union to Singapore to commemorate Human Rights Day.

Reflections On The Korean Jury Trial, Valerie P. Hans

Cornell Law Faculty Publications

Korea's experience with its new jury system offers many lessons for those interested in juries and jury reform worldwide. Aiming for a unique jury system that was ideally suited to Korean citizens and their legal system, those who crafted Korea's jury incorporated elements of both classic jury systems and mixed tribunals. Initially, the jury deliberates on guilt independently of the judge, but the procedure includes optional as well as mandatory opportunities for the presiding judge to advise the jury during its deliberation. The Korean jury delivers an advisory rather than binding jury verdict. These and other features of the Korean …

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 …

Reflections On The Korean Jury Trial, Valerie P. Hans

Valerie P. Hans