New Mexico law review 

About: New Mexico law review is an academic journal. The journal publishes majorly in the area(s): Supreme court & Doctrine. It has an ISSN identifier of 0028-6214. Over the lifetime, 212 publications have been published receiving 609 citations.

Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist Critique of Rawls’ Theory of Justice

Abstract: theory-building devices reminiscent of other well-known philosophical abstractions, such as the state of nature. The use of veil imagery is itself interesting. In much of veil imagery-the bridal veil, the Muslim veil-it is women-as-object behind the veil. Women, representing in patriarchal discourse intuition, emotion, sexuality, nurturing and the antithesis of reason, would disrupt the cool theory-building Rawls proposes. Behind Rawls' veil, woman-thinking, the terrifying Other, is abstracted out.22 Rawls gives explicit priority to abstraction, following the Kantian tradition.23 He states repeatedly that he intends to carry social contract theory to a "higher level of abstraction." 24 He begins his theory at the highest level of abstraction-the original position-gradually admitting more reference to concrete reality as the theory becomes more solid. The Theory, Rawls allows, is subject to challenge with observations from the day-today of human life.25 It is only safe to do this, however, once we have accepted the primary value of liberty. Our understanding of reality will be controlled and improved because we started at the rarefied level and experienced certain revelations there. Our darker impulses will be suppressed because abstraction will have revealed what justice as fairness

Judicial Disciplinary Systems for Incorrectly Decided Cases: The Imperial Chinese Heritage Lives On

Abstract: Local Chinese courts commonly use responsibility systems (mubiao guanli zeren zhi, zeren zhuijiu zhi) to evaluate and discipline judges. Judges receive sanctions under these systems for a wide range of behavior, such as illegal or unethical dealings with parties and lawyers, inappropriate courtroom behavior, and neglect of duty.Many local court Chinese responsibility systems also discipline judges for simple legal error. Judges may face sanctions linked to the number of cases that are reversed on appeal, simply because the interpretation of law made by a higher court differs from that of the original trial judge. Sanctions include monetary fines and negative notations in a judge’s career file. Such practices violate Chinese Supreme People’s Court (SPC) judicial interpretations specifically barring the use of responsibility systems to sanction judges for simple legal error. Local Chinese courts, however, have continued to promulgate such systems.Court responsibility systems that discipline judges for simple legal error create a perverse set of incentives for Chinese judges. In order to avoid appellate reversal, lower Chinese judges rely on an ill-defined system of advisory requests (qingshi) to solicit the views of higher courts and judges regarding how to decide pending cases. As Chinese judges themselves note, excessive resort to qingshi practices has many negative effects. It undermines appellate review, since the court or judge who reviews the case on appeal can be the same one who responded to the initial qingshi request regarding how to decide the case in the first place. It creates a relatively passive Chinese judiciary reliant on top-down direction. Last, it contributes to an overload of higher-level judicial authorities forced to handle a myriad of requests for guidance from lower-level courts. Unsurprisingly, the SPC has made qingshi reform a key component of both the 2004–2008 and the 2009–2013 plans for court reform.So what is going on? Why do local Chinese courts continue to use internal disciplinary systems that violate Chinese law and negatively affect daily operations of the judiciary? Historically, the use of disciplinary sanctions to punish judges for cases of simple legal error reversed on appeal is deeply rooted in imperial Chinese legal practices dating back to the Qin dynasty. Politically, the disciplinary sanctions employed by modern Chinese court responsibility systems and their imperial analogues reflect a comprehensive governance strategy employed by generations of centralized, authoritarian Chinese rulers to address pervasive principal–agent problems in a sprawling bureaucracy. However, these policies are generating conflict with rule-of-law norms established in the post-1978 reform period, and incarnated in the 1998 SPC judicial interpretations.Existing literature on the post-1978 Chinese legal system has devoted significant attention to formal legal norms promulgated by central institutions such as the SPC and the National People’s Congress (NPC), but ignore the underlying incentive structures that can drive judicial behavior. Local court responsibility systems and the incentives they create for individual Chinese judges are “terra incognita in terms of published systematic studies."This article presents an overview of Chinese court responsibility systems and their disciplinary treatment of incorrectly decided cases (cuo’an), and analyzes the important practical problems created in the Chinese legal system as a result of official use of responsibility systems to discipline judges for legal error. It also identifies the extent to which the key elements of modern People’s Republic of China (PRC) court responsibility systems are firmly grounded in prior imperial precedent.

Empirical Research on Judicial Reasoning: Statutory Interpretation in Federal Tax Cases

Abstract: In "Empirical Research on Judicial Reasoning: Statutory Interpretation in Federal Tax Cases," Professor Daniel Schneider uses empirical research to examine the interplay between methods of statutory construction used by judges in federal tax decisions and the judges' social backgrounds. While tax scholarship has analyzed how the Internal Revenue Code is interpreted, it has not done so empirically. This article uses statistics, especially logistic regressions, to engage in such an analysis, taking judges' backgrounds into account. Professor Schneider's database consists of decisions from both the Tax Court and the district courts sitting in the Southern District of New York, the Northern District of Illinois, and the Central District of California that were rendered between 1979 and 1998. He has assembled data about both the decisions - the court where the decision was made, the year of the decision, the primary Code section at issue, and the rationale used to justify the decision (e.g., strict construction, reliance on legislative history) - and the social backgrounds of the judges who rendered the decisions - each judge's gender, race (for the district court judges) educational background, political affiliation, prior professional experience, and length of the judge's tenure when he rendered the decision. Some of Professor Schneider's descriptive statistics include his observations about judges that: - those who decided the Tax Court cases had gone to more elite colleges and less elite law schools than judges who decided the district court cases, and - relative to the Tax Court judges, the district court judges had served on the bench less when deciding the case before them and also were more likely to have come from private practice. His observations about the methods of interpretation used are that: - judges strongly favored nonliteral approaches, especially practical reasoning, to strict construction of the Code, - they used practical reasoning in a wide variety of substantive areas of tax law, and - they frequently mixed different approaches to interpretation, pairing strict construction, for example, with nonliteral approaches. Finally, Professor Schneider uses logistic regressions to predict what approaches judges in the sampled cases could be expected to use when justifying their decisions. Statistically significant correlations between factors in judges' social backgrounds and approaches existed for factors such as the judge's education, his professional background before being appointed to the bench, and the length of his tenure when rendering his decision.