Judicial Decision Making as Knowledge Work

Epstein, Lee, William Landes and Richard Posner. 2013 . The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice . Cambridge, MA: Harvard University Press. 440 pp. Cloth, $49.95. Posner, Richard. 2008 . How Judges Think . Cambridge, MA: Harvard University Press. 400 pp. Paper, $21.00. I review two recent studies of judicial behavior, Posner's How Judges Think (2008) and Epstein, Landes, and Posner's Behavior of Federal Judges (2013). Epstein, Landes, and Posner's volume, the empirically richer of the two books, builds on the conceptual model for explaining judicial behavior put forward in Posner's How Judges Think. I discuss this conceptual model and argue in outline for an alternative model, complementary in part and antagonistic in part to the behaviorist research agenda. Posner and Epstein, Landes, and Posner argue for viewing the judge as a rational actor in a labor market. I argue that analyzing judicial decisions from the perspective of the sociology of knowledge, without axiomatically assuming rationality, will allow us to bring more evidentiary sources to bear on the problem and will allow for a more adequate test of competing theoretical interpretations. Law and society scholars are well positioned to contribute to this line of inquiry.     

Review essay / rights and responsibilities

Lloyd Weinreb, Oedipus at Fenway Park: What Rights There Are and Why There Are Any Cambridge, MA: Harvard University Press, 1994, viii, 221 pp.     

Lying during crisis negotiations: A costly means to expedient resolution

Norman J. Finkel, Commonsense Justice: Jurors’ Notions of the Law Cambridge, MA: Harvard University Press, 1995, 390pp.     

Review essay / dworkin's “full political theory of law”

Ronald Dworkin, Law's Empire Cambridge: The Belknap Press of Harvard University Press, 1986, xiii + 470 pp.     

Continuity and Caregiving: Comments on Someday All This Will Be Yours

Hartog, Hendrik. 2012 . Someday All This Will Be Yours: A History of Inheritance and Old Age . Cambridge MA: Harvard University Press. Pp. 353. $29.95 cloth. These comments on Hendrik Hartog's Someday All This Will Be Yours: A History of Inheritance and Old Age ( 2012 ) examine the delivery of elder care in the nineteenth and early twentieth centuries and the resonance with care practices today. The book's stories of how older people arranged for their care transcend time and place, showing the age‐old difficulties of providing care for the elderly.     

Moral authority in law and criminal justice: Some reflections on Wilson's The Moral Sense

William H. Simon, The Practice of Justice: A Theory of Lawyers’ Ethics Cambridge, MA: Harvard University Press, 1998, viii + 253 pp.     

When Someday Is Today: Carrying Forward the History of Old Age and Inheritance into the Age of Medicaid

Hartog, Hendrik. 2012 . Someday All This Will Be Yours: A History of Inheritance and Old Age . Cambridge MA: Harvard University Press. Pp. 353. $29.95 cloth. This review essay of Hendrik Hartog's ( 2012 ) Someday All This Will Be Yours undertakes a brief overview of some of the massive changes in middle‐class planning for old age and inheritance in the United States over the course of the past century, focusing on the increased role of the state as a source of funding and regulation, the rise of the elder law bar, and the resulting new tools and motives for the transfer of property in exchange for care in the age of Medicaid.     

Review essay / defending sexual autonomy

Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law Cambridge, MA: Harvard University Press, 1998, xii + 284 pp.     

The Past Does Not Repeat Itself,but It Rhymes: The Second Coming of the Liberal Anti‐Court Movement

The last ten years have witnessed the reemergence of fears of judicial power among scholars on the left. This renewed “Anti‐Court” movement includes the minimalism of Cass Sunstein, the popular constitutionalism of Mark Tushnet and Larry Kramer, and the bipartisan judicial restraint of Jeffrey Rosen. This essay traces the origin, development, and implications of this movement, noting its particular ties to historic trends in the academy: the Legal Process School, critical theory, and the positivist work of Gerald Rosenberg and Michael Klarman. The essay also considers the movement's preference for majoritarian politics—a partiality borne of dissatisfaction with the Rehnquist Court, but also, conversely, recognition of the failures of conservative attempts at policy making. The essay concludes by considering the ambitions of these scholars to develop a truly apolitical theory of judicial power. In light of the furious debate over the purported “minimalism” of John Roberts, severing theory from politics may prove impossible.     

Race,Care Work,and the Private Law of Inheritance

Hartog, Hendrik. 2012 . Someday All This Will Be Yours: A History of Inheritance and Old Age . Cambridge MA: Harvard University Press. Pp. 353. $29.95 cloth. In Someday All This Will Be Yours, Hendrik Hartog (2012) examines how private inheritance law structured the strategies people used at the turn of the twentieth century to induce relatives to care for them as they aged. Reading it as a book about social inequality and the family reveals how wealth, gender, and race not only worked to deny claims of marginalized caregivers but also to hide the way these social hierarchies affect family life. Although race does not figure in Hartog's analysis, highlighting its latent presence illustrates the often unspoken yet fundamental role race plays in legal regulation of families.     

The Nasty Business of Aging

Hartog, Hendrik. 2012 . Someday All This Will Be Yours: A History of Inheritance and Old Age . Cambridge MA: Harvard University Press. Pp. 353. $29.95 cloth. This essay explores the contribution of Hendrik Hartog's Someday All This Will Be Yours to an understanding of old age policy and the aging experience more broadly. It starts by discussing how Hartog's study contributes to a modern understanding of the legal structure surrounding old age. It then discusses how the narrative is colored, in part, by looking at the cases from a caregiver's perspective, and explores the implications of this perspective. Finally, it suggests avenues for building on Hartog's work by using modern legal cases to explore how courts today perceive the moral and legal obligations surrounding the duty to provide care.     

American Adversarialism Reviewing Robert A. Kagan's Adversarial Legalism: The American Way of Law

Adversarial Legalism: The American Way of Law. By Robert A. Kagan. Cambridge, MA: Harvard University Press, 2002. 339 pp. Hardcover $49.95. ISBN: 0-674-00621-6.     

Rethinking Law and State Building in Sub‐Saharan Africa

Massoud, Mark Fathi. 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge/New York: Cambridge University Press. Pp. x–277. ISBN: 9781107440050. Paper $34.99 This essay is a response to Mark Massoud's Law's Fragile State, and through comparative inquiry argues that highly contextualized analysis of courts is critical to gaining an understanding of judicial decision making and judicial empowerment. As Massoud demonstrates, focusing on the legal complex is a particularly worthwhile endeavor in fragile states. Although we may understand the sociology of the legal profession, we do not fully understand how professional networks, career paths, and identities truly impact the institutional pathways of the courts and the legal system as a whole.     

Resisting Multiple Narratives of Law in Transition Countries: Russia and Beyond

Burbank, Jane . 2004 . Russian Peasants Go to Court: Legal Culture in the Countryside, 1905–1917 . Bloomington, IN : Indiana University Press. Pp. xix + 374. $49.95 cloth. Feifer, George . 1964 . Justice in Moscow . New York : Simon and Schuster. Pp. 336 . $20.95 paper. Kaminskaya, Dina . 1982 . Final Judgment: My Life as a Soviet Defense Attorney . Trans. Michael Glenny. New York : Simon and Schuster. Pp. 364 . Out of print. Ledeneva, Alena V . 2013 . Can Russia Modernise? Sistema, Power Networks and Informal Governance . Cambridge : Cambridge University Press. Pp. xv + 332. $90.00 cloth; $32.99 paper. McDonald, Tracy . 2011 . Face to the Village: The Riazan Countryside under Soviet Rule, 1921–1930 . Toronto : University of Toronto Press. Pp. xvii + 422. $75.00 cloth. Politkovskaya, Anna . 2004 . Putin's Russia: Life in a Failing Democracy . Trans. Arch Tait. London : Harvill Press. Pp. 304 . $17.00 paper. Popova, Maria . 2012 . Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine . Cambridge : Cambridge University Press. Pp. xii + 197. $103.00 cloth; $29.99 paper. Romanova, Ol'ga . 2010 . Butyrka . Moscow : Izdatel'stvo Astrel'. Pp. 316 . 240 rubles. The literature on the role of law in countries with so‐called hybrid regimes that are stuck somewhere between democracy and authoritarianism tends to dwell on the politicization of law and the courts. This has the effect of discounting the importance of the vast majority of cases that are decided in accord with the law. Taking Russia as a case study, this essay reviews a cross‐section of the literature on its courts in order to document this tendency and explore why alternative narratives of law have failed to gain traction: Burbank's Russian Peasants Go to Court ( 2004 ); Feifer's Justice in Moscow ( 1964 ); Kaminskaya's Final Judgment ( 1982 ); Ledeneva's Can Russia Modernise? ( 2013 ); McDonald's Face to the Village ( 2011 ); Politkovskaya's Putin's Russia ( 2004 ); Popova's Politicized Justice in Emerging Democracies ( 2012 ); and Romanova's Butyrka ( 2010 ).     

Somedays,I Have Second Thoughts

In this short response to the reviewers of Someday All This Will Be Yours, A History of Inheritance and Old Age (Cambridge, MA: Harvard University Press, 2012), the author identifies some of the paradoxes and difficulties that researching and writing the book posed and, along the way, qualifies and complicates some of the conclusions that he then drew. In particular, he questions the extent to which a work of history speaks to the concerns of the emerging field of elder law.     

Reforming the Criminal Evidence System in China

Since 1997, China has proposed to reform the judicial system. In 2007, China officially set its goal of judicial reform as to “establish a Socialist Judicial System with fairness, efficiency and authority”. Now that the goal of judicial reform has been firmly established, the key question is how to accomplish that goal. One view advocates achieving judicial reform through administrative measures. A different path, which we proposed, is to accomplish the goal of judicial reform through reinforcing the construction of evidence system. Through analyzing the current law and investigating some judicial cases, the study found that the main reason for issues of judicial unfairness and corruption in current China is due to neglect of the construction of evidence system, and the current evidence rules contain too many problems, and the aforementioned problems have become a bottleneck for China's judicial reform and an important reason for China to reconstruct the whole evidence system. Therefore, in the long run, it would be ideal for legislature to promulgate a unified code of evidence law, but it is an extremely difficult task to coordinate the relationship between evidence law and three major procedural laws. In the short term, the most feasible compromise is to have the Supreme People's Court promulgate People's Court provisions on Evidence. After repeated test through the trials, we believe that such a unified People's Court provisions on Evidence will dramatically improve the evidence system and promote judicial fairness and the reform of legal education in China.     

Book review/dangerous offenders and endangered justice

Mark H. Moore, Susan R. Estrich, Daniel McGillis, and William Spelman, Dangerous Offenders: The Elusive Target of Justice Cambridge, Mass.: Harvard University Press, 1984, vi + 252 pp.     

Anatomy of Judicial Backlash: Southern Leaders,Massive Resistance,and the Supreme Court, 1954–1958

Exploiting a range of archival materials, we argue that state‐level variation in judicial backlash to Brown was as much the result of strategic choices by southern political elites as it was the ingrained prejudices of the region's white voters. Presenting case studies of massive resistance in Mississippi, Louisiana, Virginia, and Arkansas, we show that elite agency profoundly shaped the patchwork development of grassroots resistance to integration across the South. These findings challenge the prevailing view that backlash to Brown signaled the unequivocal triumph of racial conservatives. Rather, we argue that the region's response offered individual members of the southern elite significant autonomy to direct massive resistance in their home states. We also argue that southern lawmakers were responsible for the South's embrace of popular constitutionalism post‐Brown, and thus that it may not have been “popular” at all. We conclude that studies of judicial backlash would do well to reevaluate the assumption that backlash is necessarily a grassroots phenomenon.     

Writing Human Rights History—And Social Science Encounters

This review essay on Aryeh Neier's The International Human Rights Movement: A History (Princeton University Press, 2012) discusses Neier's central themes: the origins and maturation of the movement and its effects, including the expansion of human rights and humanitarian law, enhanced criminal accountability for human rights crimes, and the appearance of criminal tribunals, culminating in the International Criminal Court. An overview is interspersed by imaginary conversations between Neier and scholars who speak to his themes, especially legal scholar Jenny Martinez, political scientists Margaret Keck and Kathryn Sikkink, historians Devin Pendas and Tomaz Jardim, and sociologists John Hagan, Daniel Levy, Natan Sznaider, Joachim Savelsberg, and Ryan D. King. Linking a practitioner's account with scholarly analyses yields some benefits of “Pasteur's Quadrant.”