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.     

The People Against Themselves: Rethinking Popular Constitutionalism

Ackerman, Bruce. 2014 . The Civil Rights Revolution . Cambridge, MA: Belknap Press of Harvard University Press. Shugerman, Jed Handelsman. 2012 . The People's Courts: Pursuing Judicial Independence in America . Cambridge, MA: Harvard University Press. In the course of reviewing Jed Shugerman's The People's Courts: Pursuing Judicial Independence in America and Bruce Ackerman's The Civil Rights Revolution, we argue for a reassessment of the way that scholars think about popular constitutionalism. In particular, we urge scholars to resist the tendency to create a dichotomy between judicial interpretation of law and a set of nonjudicial venues in which popular constitutionalism supposedly takes place. Popular constitutionalism is temporally and contextually bound, reflected in different forms and forums at different times in US political history and always dependent on the interactions between these institutions. By implication, this suggest that judges, rather than serving as obstacles to popular understandings of law, can and have used various forms of democratic authorization to strike down legislation violating both state and federal constitutions, thus bridging judicial review and popular constitutionalism with explicit support from the citizenry.     

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.     

Free Market Anti-Formalism: The Case of Richard Posner

This paper analyses the impact of the Law and Economics movement on legal decision making. Focussing on the position of the leading intellectual figure of this movement, Richard Posner, the author shows how his theories imply a silent revolution in American jurisprudence. Starting from the criteria of economic efficiency and wealth maximization, seen in the light of American pragmatism, Posner upholds anti-formalist interpretation of statutor law by judges based on the principles of free market economics. His theory starts from the assumption that statutor law has become more and more ambiguous and open-ended and thus, as in the case of antitrust law, judges can freely interpret legal provisions on the basis of free market postulates. This position has broader implications in the debate about the meaning of the rule of law: Posner's position implies abandoning the emancipatory core of the liberal tradition.     

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.     

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.     

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.     

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.     

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.     

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.     

Has machine learning rendered simple rules obsolete?

European Journal of Law and Economics - Epstein (Simple rules for a complex world, Harvard University Press, Cambridge, 1995) defended the superiority of simple legal rules over complex,...     

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.     

Prolegomenon to a Southern Jurisprudence

It is good to take stock from time to time and to see how things stand in jurisprudence. So, what is the relationship of doctrine and theory with jurisprudence? Is private law theory apolitical while public law contains politics for the very many constitutional ends in the Global South? In India, legal theorist Chhatrapati Singh very originally asked if legal systems and normative systems were the same? Chhatrapati’s enquiry was however a species of the classical approach to the law that promotes the law’s purity. On the contrary, the postcolonial approaches account for the historical life as well as the political proclivities of the law. The private law theory often seen as impersonal and non-imperial comes under scrutiny in the postcolonial approaches. Duncan Kennedy and Roberto Unger notably problematized contract theory, while Upendra Baxi argued for mass tort as public law—contract and tort are both private law—to offer, if you will, a jurisprudence of the South. A southern jurisprudence essentially rejects an impersonal reading of the private law.

     

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.     

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.     

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.     

经济分析法学方法论的贡献及局限

经济分析方法对法学方法论有一定的贡献,如为法学分析提供了一种系统的观察方法,解决了对某些法律制度存在的困惑,初步形成一套传统法学所缺少的分析体系等,但法经济学和法经济分析方法存在的一些问题,这些问题表现在其本身的研究领域界限尚不明确、法经济学将问题复杂化的同时却存在偏离经济分析基本目的的倾向、法经济学研究由于方法的高度理论化和无益于现实问题的解决以及法经济学的工具理性倾向等;经济分析方法在中国法学研究中可能面临一些新问题。     

Rethinking the war against hate crimes: A New York city perspective

Francis Allen, The Borderland of Criminal Justice: Essays in Law and Criminology Chicago: The University of Chicago Press, 1964

Francis Allen, The Crimes of Politics: Political Dimensions of Criminal Justice Cambridge: Harvard University Press, 1974

Francis Allen, Law, Intellect, and Education Ann Arbor: University of Michigan Press, 1979

Francis Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose New Haven: Yale University Press, 1981     

Autonomy and private ordering in contract law

This essay reviews Michael J. Trebilcock's book,The Limits of Freedom of Contract (Cambridge, MA: Harvard University Press, 1993), examining crucial and controversial social issues within the rigorous framework of the law and economics of contract. The idea that private markets are the primary institutions for the allocation of limited resources is central to any private ordering model of contract law. Yet such a premise leaves a number of fundamental questions unanswered. Trebilcock is critical of the insufficiency and ambiguity of current contract theory in addressing fundamental legal issues relating to the limits of freedom of contract. Pushing the frontiers of current legal theory, Trebilcock revisits the slippery notion of freedom of contract and tests the actual reach of economic analysis in providing a coherent answer to compelling social questions. The author pursues his ambitious task by examining the conclusions reached by competing paradigms of analysis. In spite of his declared trust in the economic approach to law, Trebilcock pays close attention to alternative analytical traditions, comparing the conclusions of various intellectual perspectives with those suggested by an economic framework of private ordering. The book objectively examines strengths and weaknesses of competing views, affording the reader a balanced position from which to conclude for herself, by illustrating the practical implications of the various approaches. In a number of instances, Trebilcock shows how different theoretical premises may indeed be conducive to similar institutional outcomes.Associate Professor of Law, George Mason University. The support of the Sarah Scaife Foundation and of the John M. Olin Foundation is gratefully acknowledged, as are the helpful comments of Jonathan C. Harris and Charles K. Rowley. Extensive remarks received from Michael J. Trebilcock prior to publication allowed me to remedy earlier omissions.     

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.