Showing papers on "Judicial opinion published in 2013"

The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice

Abstract: Judges play a central role in the American legal system, but their behavior as decision makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made. The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In their view, this model describes judicial behavior better than either the traditional "legalist" theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.

Quality Over Quantity: Amici Influence and Judicial Decision Making

Abstract: Interest groups often make their preferences known on cases before the U.S. Supreme Court via amicus curiae briefs. In evaluating the case and related arguments, we posit that judges take into account more than just the number of supporters for the liberal and conservative positions. Specifically, judges’ decisions may also reflect the relative power of the groups. We use network position to measure interest group power in U.S. Supreme Court cases from 1946 to 2001. We find that the effect of interest group power is minimal in times of heavily advantaged cases. However, when the two sides of a case are approximately equal in the number of briefs, such power is a valuable signal to judges. We also show that justice ideology moderates the effect of liberal interest group power. The results corroborate previous findings on the influence of amicus curiae briefs and add a nuanced understanding of the conditions under which the quality and reputation of interest groups matter, not just the quantity.

Judges and the Politics of Death: Deciding between the Bill of Rights and the Next Election in Capital Cases

Abstract: The thunderous voice of the present-day "higher authority" that Justice Stevens described is heard today with unmistakable clarity in the courts throughout the United States. Those judges who do not listen and bend to political pressures may lose their positions on the bench. Decisions in capital cases have increasingly become campaign fodder in both judicial and nonjudicial elections. The focus in these campaigns has been almost entirely on the gruesome facts of particular murders, not the reason for the judicial decisions. Judges have come under attack and have been removed from the bench for their decisions in capital cases­ with perhaps the most notable examples in states with some of the largest death rows and where the death penalty has been a dominant political issue. Recent challenges to state court judges in both direct and retention elections have made it clear that unpopular decisions in capital cases, even when clearly compelled by law, may cost a judge her seat on the bench, or promotion to a higher court. This raises serious questions about the independence and integrity of the judiciary and the ability of judges to enforce the Bill of Rights and otherwise be fair and impartial in capital cases.

The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content

Abstract: Scholars have dedicated substantial research efforts to investigating whether interest group amicus curiae briefs influence the behavior of Supreme Court justices. Despite this, there has been little systematic attention devoted to exploring what is arguably the most important aspect of the Court’s policy outputs – its majority opinions. We remedy this state of affairs by using plagiarism detection software to assess the ability of amicus briefs to shape the content of judicial opinions. Our findings indicate that the justices incorporate language from amicus briefs into their opinions based primarily on the extent to which amicus briefs contribute to their ability to make effective law and policy. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.

The Decisions and Ideal Points of British Law Lords

Abstract: Policy-sensitive models of judicial behaviour, whether attitudinal or strategic, have largely passed Britain by. This article argues that this neglect has been benign, because explanations of judicial decisions in terms of the positions of individual judges fare poorly in the British case. To support this argument, the non-unanimous opinions of British Law Lords between 1969 and 2009 are analysed. A hierarchical item-response model of individual judges’ votes is estimated in order to identify judges’ locations along a one-dimensional policy space. Such a model is found to be no better than a null model that predicts that every judge will vote with the majority with the same probability. Locations generated by the model do not represent judges’ political attitudes, only their propensity to dissent. Consequently, judges’ individual votes should not be used to describe them in political terms.

Compliance: Conceptualizing, Measuring, and Explaining Adherence to Judicial Rulings

Abstract: Public authorities' compliance with judicial dictates is central to legality and constitutionality, may influence broader policy and political outcomes, and can have powerful feedback effects on judicial decision making, independence, and power. As such, it has crucial implications for interbranch relations and the rule of law. Effectively measuring compliance with judicial rulings and clearly explaining when and why elected leaders adhere to courts' mandates present a range of inferential challenges. Building on the groundwork laid in the burgeoning literature on the topic, this article advances two analytic frameworks (one for measuring and one for explaining compliance), offers strategies for grappling with the problems of descriptive and causal inference that arise in studying compliance, and advocates the use of multiple analytic methods to generate and test hypotheses regarding compliance.

The influence of personal values on legal judgments

Abstract: The non-legal factors that influence judicial decisions, in cases which divide judicial opinion, have been the subject of extensive debate. To date, theoretical and empirical work has focussed on several factors including political ideology, activism, attitudes and demographics. Personal values are related to each of these factors and are central to decision making. This study translated theories and techniques from psychological research to examine the role of personal values in judicial decision making. Using a novel method of assessment of value expression in legal opinions, this study revealed a different pattern of values expressed in the majority and minority opinions of a case that divided the Supreme Court. The relationship between personal values and legal decision making was extended with data from an empirical study of legal academics which highlights the significant influence of personal values on legal decision making. This study translates psychological theory to legal practice. The value: decision paradigm provides a new framework to analyse judicial decision making, judicial division and the exercise of judicial discretion. The study also has significant implications in the current debates surrounding judicial diversity.

Source Cues and Public Support for the Supreme Court

Abstract: It is well known that the public often relies on cues or heuristics when forming opinions. At the same time, leading theories of opinion formation about the Supreme Court see such support as relatively fixed. This includes the extent to which the public views the Court as a legitimate institution, and thus one that should be granted high levels of judicial independence. Such theories would suggest that the public should not rely on source cues to inform their opinion about the level of independence the Court should hold. Using a series of survey experiments, we find that, conversely, partisan source cues significantly influence the public's support for judicial independence. These results have important implications for understanding the extent to which politicians can shape the public's overall support for judicial independence, as well as for assessing the degree to which the public views the Court as a "political" institution.

A Theory of Public Opinion

Abstract: This book traces the emergence of the ideas and institutions that evolved to give people mastery over their own destiny through the force of public opinion. The Greek belief in citizen participation is shown as the ground upon which the idea of public opinion began and grew. For Wilson, public opinion is an "orderly force," contributing to social and political life. Wilson appraises the influence of modern psychology and the slow appearance of methodologies that would enable people not only to measure the opinions of others, but to mold them as well. He examines the relation of the theory of public opinion to the intellectuals, the middle class, and the various revolutionary and proletarian movements of the modern era. The circumstances in which the individual may refuse to follow the opinions of the experts are succinctly and movingly analyzed. This book is a historical and philosophical evaluation of a concept that has played a decisive part in history, and whose overwhelming force is underestimated. The author's insight brings an understanding that is invaluable at a time when public opinion, the force developed to enable the ruled to restrain their rulers, has become controllable. Attempts to manipulate it are made by those who would impose their will upon their fellow men.

Strategic Citations to Precedent on the U.S. Supreme Court

Abstract: Common law evolves not only through the outcomes of cases but also through the reasoning and citations to precedent employed in judicial opinions. We focus on citations to precedent by the U.S. Supreme Court. We demonstrate how strategic interaction between justices during the Court’s bargaining process affects citations to precedent in the Court’s opinion. We find that the majority-opinion writer relies more heavily on precedent when the Court’s decision is accompanied by separate opinions. We also show that diversity of opinion on the Court, a factor often overlooked, has a significant relationship with citations to precedent. Finally, our results indicate that the ideology of the median justice influences citation practices more than ideology of the majority-opinion writer.

Race and Juvenile Incarceration: A Propensity Score Matching Examination

Abstract: Disproportionate minority contact is an important issue in contemporary juvenile justice. Few studies have directly examined the link between race and judicial decision to incarceration. Using official data from Pennsylvania (n = 41,561), this study added to this literature in two ways. This study used propensity score matching to obtain a purer estimate of the influence race has on the decision to petition a case to juvenile court. The results indicated that prosecutors use perceptual shorthand in making this decision that hinges on race. Specifically, blacks were more 1.28 times more likely than whites to have their case petitioned to juvenile court.

Language analysis in the United Kingdom's refugee status determination system: seeing through policy claims about ‘expert knowledge’

Abstract: This paper examines claims made about the role of ‘expert knowledge’ in analysing the language of individuals seeking asylum in the UK. I treat policy as a type of power and seek to understand how this policy uses the language of science to further the British government's stated interest to provide ‘secure borders’ and a ‘safe haven’ for refugees. I look at how the Home Office defines, shapes and implements the policy, and at how the policy has influenced judicial decisions. In short I unmask UKBA's claim that it relies upon expert, scientific knowledge to assess asylum claims.

Diversity, Deliberation, and Judicial Opinion Writing

Abstract: Underlying scholarly interest in diversity is the premise that a representative body contributes to robust decision-making processes. Using an innovative measure of opinion content, we examine this premise by analyzing deliberative outputs in the US courts of appeals (1997–2002). While the presence of a single female or minority did not affect the attention to issues in the majority opinion, panels composed of a majority of women or minorities produced opinions with significantly more points of law compared to panels with three Caucasian males.

Pathetic Argument in Constitutional Law

Abstract: Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse — think of “Poor Joshua!” — but existing accounts of constitutional practice do not provide resources for understanding the place of and limitations upon such appeals when they appear in judicial opinions. This Article begins to fill that gap. Pathetic argument is one of the acceptable modes of persuasion that constitutional argument shares with other deliberative domains, though at its best it can be used to amplify arguments within the set of discourses — text, history, structure, precedent, and consequences — that make constitutional law a distinctive form of politics. Normatively, appeals to emotion are most easily justified in opinions that seek to declare rather than apply law; in separate writings; when addressed to accepted subjects of constitutional argument rather than the ultimate outcome in the case; and when they arouse other-regarding rather than self-regarding emotions. A nuanced account of the proper place of pathetic argument in constitutional law is instrumental to understanding what it means to engage, and not to engage, in constitutional discourse.

Discussion Paper: Hard Cases Make Bad Law -- Reactions to R v. T

Abstract: In the case of R v T (2010), the Court of Appeal for England and Wales rejected the testimony of an expert who had used likelihood ratios to assess the probative value of shoe-print evidence. Because likelihood ratios are widely used in forensic science, and their use has been actively promoted by leaders in the field (Association of Forensic Science Providers, 2009; Cook et al., 1998; Evett, 1998; Robertson and Vignaux, 1995), the court’s opinion has understandably caused consternation in the forensic science community (Berger et al. 2011; Robertson et al. 2011; Redmayne et al. 2011). Recognizing the importance of the issues involved, the editors of Law, Probability and Risk have devoted this issue to articles commenting on the case. At the invitation of Editor Colin Aitken, it is my privilege and honour to review and respond to those articles. In the interest of full disclosure, I will say at the outset that I think R v T is an inept judicial opinion that creates bad law. The opinion went awry because the justices who wrote it misunderstood a key aspect of the evidence they were evaluating. The justices sought to achieve laudable goals, but their misunderstanding of basic principles of inductive logic, and particularly Bayes’ theorem, led them to exclude a type of expert evidence that, in general, is helpful and appropriate in favour of an alternative type of expert of evidence that is fundamentally inconsistent with the goals the court sought to achieve. The case has already received severe criticism1 and will inevitably come to be seen for what it is — a judicial blunder.

A neo-Aristotelian notion of reciprocity: about civic friendship and (the troublesome character of) right judicial decisions

Abstract: This chapter argues that a neo-Aristotelian approach can play a valuable role in accounting for reciprocity in adjudication. It can solve the central flaws that an “adjudication as applied moral theory” approach faces. In addition, the author asserts that a neo-Aristotelian approach to adjudication needs the concept of civic friendship in order to really account for reciprocity in adjudication. Citizens will have a reason to accept the painful burden of a particular judicial decision if the decision is made by a judge who is both judicially wise and a civic friend.

Elections and Explanations: Judicial Elections and the Readability of Judicial Opinions

Abstract: How do judicial elections affect the propensity of judges to write opinions that are understandable to the public? Drawing on a growing literature that analyzes the content of judicial opinions computationally, I examine the readability of all state supreme court search and seizure decisions from 2000-2010. I assess the hypothesis that, just as judicial elections increase judges’ propensities to follow public opinion when voting on the merits of a case, the presence of these retention institutions also provides incentives for judges to justify their opinions in language that their constituents can readily understand. However, when elected judges fear a difficult path to retention, they tend to write opinions that are more difficult for the average constituent to understand.

Legal Realisms, Old and New

Abstract: “Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? There are, of course, other “legal realisms,” old and new, from the “free law” movement in Germany more than a century ago, to the Italian realism of the Genoa School today. My focus, however, shall be on the old and new Realisms that are probably most familiar. Is there anything they all share? I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. Moore's case is a cautionary note in taking au courant social science too seriously; and Llewellyn's work was necessitated by the fact that the "primitive" peoples he wanted to study did not write their judicial opinions down. For any modern legal culture, such "field work" would be unnecessary on Llewellyn's view.

Judicial Independence and Opinion Clarity on State Supreme Courts

Abstract: We contribute to the literature on judicial independence and performance in the states by analyzing opinion clarity. Written opinions are the primary means of communication for state supreme court justices, and clarity is a core component of judicial performance. Using automated text analysis on a sample of state supreme court opinions from all fifty states, we find that variation in judicial retention systems is not associated with substantively meaningful differences in opinion clarity. Furthermore, elected judges do not seem to produce clearer opinions in salient cases notwithstanding the increased public visibility of those decisions. These results suggest that judges tend to conform to prevailing professional norms despite differing institutional constraints.

Majoritarian Judicial Review: The Case of Taiwan

Abstract: Conventional wisdom has it that judicial review is counter-majoritarian in the sense that it nullifies laws passed by the majority Yet despite the principal-agent issue of whether legislators faithfully fulfill their obligations, this is still a simplistic depiction and does not take into account when and where the majority is formed It simply assumes that public opinion does not change once the laws are passed, and judicial review around the globe functions in the same way This article tries to demonstrate that the Constitutional Court in Taiwan is indeed a majoritarian court from three perspectives: docket records, agenda-setting, and case studies This article argues that, owing to its institutional crisis, the Court sides with the majority most of the time in the sense that it rarely resists the contemporary congressional majority Consequently, judicial supremacy does exist in Taiwan, but simply because it is in accordance with the majority By contrast, judicial self-restraint, championed in many other countries as a virtue, is indeed counter-majoritarian This characteristic directly affects the likelihood of whether the Court can bring about political and social change in the future

“There Must be Some Way Out of Here”: Why the Convention on the Rights of Persons With Disabilities is Potentially the Best Weapon in the Fight Against Sanism

Abstract: It is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism permeates all aspects of the legal system – judicial opinions, legislation, the role of lawyers, juror decision-making – and the entire fabric of society. For those unfamiliar with the term, I define “sanism” as an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, 1 that permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses. 2 Notwithstanding over two decades of anti-discrimination laws 3 and, in many jurisdictions, an impressive corpus of constitutional case law and state statutes, 4 the attitudes of judges, jurors and lawyers often reflect the same level of bigotry that defined this area of law ...

Communicative Content and Legal Content

Abstract: INTRODUCTION This Essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This Essay makes two moves that can help lawyers and legal theorists answer these questions. First, there is a fundamental conceptual distinction between "communicative content" (the linguistic meaning communicated by a legal text in context) and "legal content" (the doctrines of the legal rules associated with a text). Second, the relationship between communicative content and legal content varies with context; different kinds of legal texts produce different relationships between linguistic meaning and legal rules. I will proceed as follows. In Part I, "Distinguishing Communicative Content and Legal Content," I will investigate the questions raised by differentiating the linguistic meaning of legal texts from the legal content that the texts create. In Part II, "Communicative Content," I will provide an account of communicative content in general and then apply that account in more particular contexts (contract formation, constitutional interpretation, and the interpretation of judicial opinions). My aim is to show that the differences between these contexts lead to systematic differences in the ways we discern the communicative content of different types of legal texts. In Part III, "Legal Content," I will investigate the role that communicative content plays in the determination of legal content. Again, I will investigate different contexts of legal communication, but in this Part with the aim of showing that the role played by communicative content in determining legal content is context sensitive. In some contexts, the meaning of the text has pride of place, but in other contexts, communicative content plays only a secondary role. Finally, in the Conclusion, I will say something about the payoff of this investigation for legal theory and practice. I. DISTINGUISHING COMMUNICATIVE CONTENT AND LEGAL CONTENT For any given legal text, we can distinguish two kinds of content. First, legal texts have communicative content. The phrase "communicative content" is simply a precise way of labeling what we usually call the "meaning" or "linguistic meaning" of the text. Legal texts also have associated legal content. "Legal content" is a precise way of labeling the content of the legal norms the text produces. In the case of the Constitution, for example, we can distinguish the communicative content of the constitutional text and the legal content of the doctrines of constitutional law that are associated with the text. Here is a simple example of the distinction between communicative content and legal content. The text of the First Amendment reads as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (1) The word "Congress" in the First Amendment has communicative content, usually it is understood to refer to the Congress of the United States, consisting of the House of Representatives and the Senate. But the legal content of First Amendment doctrine is not limited in this way: for example, the freedom of the press applies to judicially created defamation law. (2) Consider some examples of the issues that arise once we distinguish communicative content and legal content. …

Understanding Judicial Decision Making in Immigration Cases at the U.S. Courts of Appeals

Abstract: Immigration is an increasingly important area of decision making for federal judges The recent increase in appeals of immigration cases to the courts of appeals raises the question whether judges deciding these cases behave in ways consistent with the extant attitudinal literature or if other factors, such as case characteristics and institutional concerns, weigh more heavily on the decision making of judges It is possible, for example, that the country of origin for the alien, or the panel on which a judge serves, also influences decision making Using an original data set of immigration cases drawn from the Third, Fifth, and Ninth circuits, this article presents models that examine whether and how ideology influences the decision making of courts of appeals judges in immigration-removal cases, given other case and institutional factors that might temper the effects of ideology

Reasoning with previous decisions: beyond the doctrine of precedent

Abstract: '[A] relative absence of skills in case analysis’ is said to be 'the Achilles heel of civil-law methods'. This article takes issue with this view and shows that the continental European tradition has its own ways of dealing with cases. These techniques can appear different from the common law ‘case law method’, but are no less rational and intellectually sophisticated. The reason for the rather conceited attitude of some comparatists lies in the dominance of the common law paradigm of precedent and the accompanying ‘case law method’. If we want to understand how courts and lawyers in different jurisdictions use previous judicial decisions in their argument, we need to move beyond precedent to a wider notion, which would embrace practices and theories existing in legal systems outside the Common law tradition. This article presents the concept of ‘reasoning with previous decisions’ as such an alternative and develops its basic models.

The Judicial Reform in China: The Status Quo and Future Directions

Abstract: This article shows that Chinese adjudication is in a dilemma: on one hand, the judicial discretion is extensive; on the other hand, public opinion supervision is adopted to control the discretion. In fact, the public opinion and judicial discretion could co-exist and compliment one another. There is no objective and stable framework regulating both. There are attempts aiming to completely negate the judicial discretion, such as computer sentencing. A strange logic of judicial reform exists in China: either eliminating the judicial discretion through such mechanical methods as computer sentencing in the hope to guarantee judgment in conformity with the law; or resorting to the arbitrary external power intervention or public opinion supervision to constrain the judicial discretion, resulting in a new form of discretion. In the author's opinion, the critical nexus of institutional designing of good governance is an independent judiciary following the principle of procedural fairness. Therefore it is necessary for China to first establish the courts' authority through judicial reforms, laying the institutional foundation of rule-of-law. Then comes the supervising and checking of the legality of the government power. More importantly, an independent judiciary functions as a neutral arbiter of conflicting interest groups and a third-party enforcer of contracts, which enhances the predictability of market transactions and safeguards fair competition. Compared with structural shift of political power, judicial reform is relatively less difficult and more practical. If judicial reform dooms to fail, how is it possible for a comprehensive political reform to succeed? It is admitted that the judicial reform is subject to the overall power arrangements, nevertheless, it is still probable that we resort to judicial reform, as a breakthrough or reference, a gradual switch on the transformation of political power structure, centering on fundamental requirements of rule-of-law. This roadmap, of course, has preconditions, that is, that the ruler has adequate practical rationality and that society reaches consensus on rule-of-law.

The Upside of Losing

Abstract: Conventional understanding in legal reform communities is that time and resources are best directed toward legal disputes that have the highest chance of success and that litigation is to be avoided if it is likely to establish or strengthen unfavorable precedent. Contrary to this accepted wisdom, this Essay analyzes the strategic decisions of litigation entrepreneurs who pursue litigation with the awareness that losing the case can provide substantial benefits. Unfavorable litigation outcomes can be uniquely salient and powerful in highlighting the misfortunes of individuals under prevailing law, while presenting a broader narrative about the current failure of the legal status quo. The resulting public backlash may slow down legislative trends and can even prompt legislative initiatives that reverse the unfavorable judicial decisions or induce broader reform.This analysis revises some conventional wisdom about litigation. First, while it is traditionally understood that legal reform activists must persuade courts to recognize unattended rights or to confirm new rights and activist positions, the analysis here suggests that social changes can be obtained in litigation without requiring the involvement of courts as policymakers. Moreover, passive courts and judicial deference in fact strengthen the mobilizing effect of litigation by clearly shifting the burden to legislators and their constituents. Second, the dynamics of successful defeat in litigation shed new light on the costs and benefits involved with litigation. In the proposed framework, a plaintiff’s decision to litigate rests not simply on the probability of success but also on a tradeoff between the potential costs of a negative precedent and the political benefits obtained in defeat. Third, the mobilizing potential of adverse court decisions presents a fascinating conflict between the immediate interests of the actual plaintiff and of the litigation entrepreneur or intermediary that supports the litigation with an eye on the underlying long-term goals of a social cause. Finally, the potential benefits of adverse outcomes refute some of the criticisms about the limitations and downsides of pursuing social change through courts.

Legal Realisms, Old and New

Abstract: “Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? There are, of course, other “legal realisms,” old and new, from the “free law” movement in Germany more than a century ago, to the Italian realism of the Genoa School today. My focus, however, shall be on the old and new Realisms that are probably most familiar. Is there anything they all share? I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. Moore's case is a cautionary note in taking au courant social science too seriously; and Llewellyn's work was necessitated by the fact that the "primitive" peoples he wanted to study did not write their judicial opinions down. For any modern legal culture, such "field work" would be unnecessary on Llewellyn's view.

A Formal Approach to Article 38(1)(d) of the ICJ Statute from the Perspective of the International Criminal Courts and Tribunals

Abstract: This article offers an interpretation of Article 38(1)(d) of the ICJ Statute based on the formal pronouncements of international criminal courts and tribunals, distilled from their judgments. It considers that the qualification "subsidiary" is meant neither to distinguish the means from the primary sources nor to denote "of lesser importance". It further examines the verification process envisaged in "the determination of rules of law", as well as the more direct impact of judicial decisions vis-a-vis the teachings of publicists.

Legal argumentation theory: Cross-disciplinary perspectives

Abstract: Table of Contents.- Introduction Christian Dahlman and Eveline Feteris.- Reasoning by Consequences: Applying Different Argumentation Structures to the Analysis of Consequentialist Reasoning in Judicial Decisions Flavia Carbonell.- On the Argumentum ad Absurdum Statutory Interpretation: its Uses and Normative Significance Thomas Bustamante.- Why precedent in law (and elsewhere) is not totally (or even substantially) about analogy Frederick Schauer.- Fallacies in Ad Hominem Arguments Christian Dahlman, David Reidhav and Lena Wahlberg.- The Rule of Law and the Ideal of a Critical Discussion Harm Kloosterhuis.- Strategic Maneuvering with the Argumentative Role of Legal Principles in the Case of the "Unworthy Spouse" Eveline Feteris.- Legal argumentation and the normativity of legal Norms Carlos Bernal.- Weighing and Balancing in the Light of Deliberation and Expression Bruce Anderson.- Construction or reconstruction? On the Function of Argumentation in the Law Jaap Hage.- The Argument from Psychological Typology for a Mild Separation between the Context of Discovery and the Context of Justification Marko Novak.- Constitutive Rules and Coherence in Legal Argumentation: The Case of Extensive and Restrictive Interpretation Antonino Rotolo and Corrado Roversi.- Is Balancing a Method of Rational Justification sui generis? Jan Sieckmann.- Arguing on Facts. Truth, Trials and Adversary Procedures. Giovanni Tuzet.- Index.

Directors’ Duties in China

Abstract: This paper examines the development of the legal framework regarding fiduciary duties of directors in China. The concept of fiduciary duty was introduced by the 2005 revisions to China’s Corporate Law. The implementation of fiduciary duties in China has encountered considerable obstacles because of the inherent weakness of the legal system. The legal texts are simple, vague and rigid. In the enforcement process, formalized judgments have placed limitations on precedent creation, thus reducing the deterrent effect, and the judicial system has shown reluctance to intervene in matters related to directors’ duties in listed companies. There have been improvements, however. In a limited number of judicial decisions, courts have attempted to more clearly define the meaning of directors’ fiduciary duties. In the penalty decisions of the China Securities Regulatory Commission (CSRC), the duties of directors have been interpreted in a more sophisticated manner.