American State Supreme Court Justices, 1900-1970

What are the paths that lead to the state supreme court bench? If we can identify these paths, can we then determine that they produce distinctive patterns in a court3 decision making? Based on a study of 694 judges who sat on 16selected American state supreme courts between 1900 and 1970, this article finds that the appellate judiciary was drawn from a variety of legal and political backgrounds rather than from any single career line. The judges came from both non-elite and elite law schools. About half had no substantial lower court judicial experience. Over one-third had been public prosecutors, another third had held other elective political office, and only a small minority had practiced in multilawyer big-city law firms. The article reports changes over time in these and other judicial characteristics (such CIS age, turnover, political party affiliations) and describes interstate differences. Few significant statistical relationships are found, however, between the background characteristics of judges and selected characteristics of state supreme court opinions.     

Chapter 7: Drafting the Custody Order

This chapter outlines provisions that should be included in custody orders to aid interstate enforcement. When there is risk of child abduction, the court should include preventive measures in the custody order. This chapter also helps judges identify families at risk for child abduction, and suggests appropriate safeguards to put in the order.     

The Transmission of Legal Precedent Across the Australian State Supreme Courts Over the Twentieth Century

This article considers several possible determinants of the transmission of legal precedent across Australian state supreme courts over the course of the twentieth century. The study finds that that the transmission of legal precedent is higher between State supreme courts that are more physically proximate and between state supreme courts in which a majority of judges in both courts are appointed by conservative governments. The study further finds that having an intermediate trial court and providing appointments to the High Court of Australia are correlated with whether a state is a source of interstate citations or a cue sender.     

Ethics, Law, and Commercial Surrogacy: A Call for Uniformity

In the United States at this time, no uniform federal law exists regarding commercial surrogacy, and state statutory schemes vary vastly, ranging from criminalization to legal recognition with contract enforcement. The authors examine how commercial surrogacy agencies utilize the Internet as a means for attracting parents and surrogates by employing emotional cultural rhetoric. By inducing both parents and surrogates to their jurisdiction, agencies circumvent vast discrepancies in state statutory regulative schemes and create a distinct interstate business, absent an efficient regulatory framework or legal recourse in some circumstances. The authors propose a uniform federal regulatory scheme premised upon regulating interstate business transactions to create accountability and legal remedies for both the parents and the surrogate.     

Brazilian judges in-between professionalism,gender and difference

This paper analyzes how Brazilian judges experience difference, focusing on how professionalism, gender, generation and diversity intersect in identity formation among women and men who are judges in the state of São Paulo, Brazil. In attempting to avoid attaching one fixed meaning to the concept of difference, we work with Avtar Brah's typology; this in turn enables us to capture how difference is perceived and experienced by our interviewees. Our results provide a look at how the specificities of the professionalization process influence the composition of the two courts we have studied (one at state and another at federal level), and how they increase or reduce the gender stratification within these careers. Being a judge is experienced through difference, in particular as the ‘Other' to those outside the career, and wherein identification is intersected by questions of gender, sexuality and generation. Although professionalism establishes boundaries between ‘us' and ‘them', it is also diluted through the ways in which the above-mentioned social markers and attributes permeate the self and professional groups. We interviewed 18 judges (women and men) from the São Paulo State Courts (Tribunal de Justiça de São Paulo) and 10 judges from the Regional Federal Courts (Tribunal Regional Federal) from the São Paulo circuit.     

Courting the Environment – A Comparative Analysis

Statutory interpretation is of central importance to the daily work of all judges. This paper explores the reasons why statutory interpretation is necessary and then considers how judges have explained the way in which they carry out this task. It examines how judges consider the text, the context and the purpose of statutory provisions. It also looks at how human rights instruments can be used as an interpretive tool. It then considers the issue of whether judges can ‘fill in gaps’ in a legislative scheme and whether there is a Rubicon which judges cannot cross in the interpretive process.     

An introduction to judicial fact-finding

This article seeks to provide an introduction as to how judges determine facts. It draws on material across a range of jurisdictions as to how judges themselves have described what they do and what they ought to do. It explores what factors judges take into account when deciding whether the evidence of a witness is credible. It examines the difference between recollection and reconstruction of events by witnesses and considers how judges draw inferences from primary facts. The importance of documentary evidence, expert evidence, judicial notice and the giving of reasons in the fact-finding process are also explored.     

How Law Rules: Torture,Terror, and the Normative Judgments of Iraqi Judges

We present a factorial survey experiment conducted with Iraqi judges during the early military occupation of Iraq. Because U.S. soldiers are immune from prosecution in Iraqi courts, there is no opportunity for these judges to express their views regarding highly publicized torture cases. As legally informed representatives of an occupied nation, however, Iraqi judges arguably have a strong claim to a normative voice on this sensitive subject. We are able to give voice to these judges in this study by using a quasi‐experimental method. This method diminishes social desirability bias in judges' responses and allows us to consider a broad range and combination of factors influencing their normative judgments. We examine why and how the U.S. effort to introduce democracy with an indeterminate rule of law produced unintended and inconsistent results in the normative judgments of Iraqi judges. A critical legal perspective anticipates the influences of indeterminacy, power, and fear in our research. More specifically, we anticipated lenient treatment for guards convicted of torture, especially in trouble cases of Coalition soldiers torturing al Qaeda prisoners. However, the results—which include cross‐level, judge‐case interaction effects—were more varied than theoretically expected. The Iraqi judges responded in disparate and polarized ways. Some judges imposed more severe sentences on Coalition guards convicted of torturing al Qaeda suspects, while others imposed more lenient sentences on the same combination of guards and suspects. The cross‐level interactions indicate that the judges who severely sentenced Coalition guards likely feared the contribution of torture tactics to increasing violence in Iraq. The judges who were less fearful of violence were more lenient and accommodating of torture by Coalition forces. The implication is that the less fearful judges were freed by an indeterminate law to advance Coalition goals through lenient punishment of torture. Our analysis suggests that the introduction of democracy and the rule of law in Iraq is a negative case in the international diffusion of American institutions. The results indicate the need for further development of a nuanced critical legal perspective.     

Fairness, Justice, and Legitimacy: Experiences of People's Judges in South Russia

Which criteria do Russians use to evaluate the fairness of their judges, and how does perceived fairness of actual trials influence general beliefs about Russian courts? Lay assessors at courts in South Russia were asked about their experience serving on mixed courts. The justice of the verdicts rendered and the fairness of judges partly explain the respondents’ view of national courts. According to the results, the respondents are also using similar criteria for fairness as Americans or Germans. The social and psychological group effects in a Russian court of lay assessors exhibit a striking similarity to other Western tribunals.     

HOW JUDGES THINK ABOUT RACIAL DISPARITIES: SITUATIONAL DECISION‐MAKING IN THE CRIMINAL JUSTICE SYSTEM*

Researchers have theorized how judges’ decision‐making may result in the disproportionate presence of Blacks and Latinos in the criminal justice system. Yet, we have little evidence about how judges make sense of these disparities and what, if anything, they do to address them. By drawing on 59 interviews with state judges in a Northeastern state, we describe, and trace the implications of, judges’ understandings of racial disparities at arraignment, plea hearings, jury selection, and sentencing. Most judges in our sample attribute disparities, in part, to differential treatment by themselves and/or other criminal justice officials, whereas some judges attribute disparities only to the disparate impact of poverty and differences in offending rates. To address disparities, judges report employing two categories of strategies: noninterventionist and interventionist. Noninterventionist strategies concern only a judge's own differential treatment, whereas interventionist strategies concern other actors’ possible differential treatment, as well as the disparate impact of poverty and facially neutral laws. We reveal how the use of noninterventionist strategies by most judges unintentionally reproduces disparities. Through our examination of judges’ understandings of racial disparities throughout the court process, we enhance understandings of American racial inequality and theorize a situational approach to decision‐making in organizational contexts.     

Judicial and Litigant Perceptions in Dutch Court Cases: Perceptions of Outcome Importance Overlap,Perceptions of Procedural Justice Diverge

Social Justice Research - The current paper aims to provide insight into judges’ perceptions of how fairly they treat litigants and how important case outcomes are to litigants, and whether...     

Power,National Security and Transparency: Judicial Decision Making and Social Architecture in the Federal Courts

Even in a democratic society, the need for transparency must be balanced with an important countervailing interest: the occasional, legitimate need for government secrecy. This article, based on an examination of opinions in federal cases dealing with national security and transparency, explores how judges identified the main legal issues presented by a case and the legal factors or mode of legal interpretation used to reach or justify their conclusions. The article concludes that many of these opinions are as much about judges’ attempts to balance the judicial branch's power with the powers of the executive and legislative branches as they are about national security and transparency. Furthermore, the article contends these opinions have created an “architecture of power” that determines how national security information is controlled. The final section also suggests that judges should be mindful of the original architecture of power established by the Constitution and the First Amendment when writing their opinions.     

Small‐Group Dynamics,Ideology, and Decision Making on the US Courts of Appeals

There is some evidence that judges who specialize in particular legal areas vote in more ideologically consistent ways than do nonspecialists. Upon replicating those individual results across multiple legal areas in the US courts of appeals, we assess how this increasing reliance on ideology by specialists affects decision making by others on a three‐judge panel. We find that judges who serve with a specialist are especially likely to vote in a manner consistent with the ideological position of the specialist with whom they serve. These results suggest that specialization has the potential to facilitate panel effects across numerous legal policy areas.     

Judicial Work and Judges’ Motivation: The Perceptions of Brazilian State Judges

The professional ethos of judges has undergone many changes in Brazil in recent years, generating conflicts about the role of these professionals in society. This article examines how Brazilian judges deal with those conflicts. The objective is to identify how judges perceive their social role and, based on that, what motivates them in their work. A series of twenty‐five in‐depth interviews was carried out with Brazilian state judges working in all regions of the country in different judicial specialties. The findings indicate that the judges interviewed can be classified into four different profiles according to the predominant social role: (1) social activist; (2) service provider; (3) judicial restraint; and (4) defender of the status quo. Each profile corresponds to a specific individual and social motivation.     

How Litigants in Dutch Courtrooms Come to Trust Judges: The Role of Perceived Procedural Justice,Outcome Favorability,and Other Sociolegal Moderators

This paper examines the hypothesis that litigants' perceived procedural justice is positively associated with their trust in judges. We argue that although this association might seem quite robust, it can vary across contexts. In particular, we suggest that the nature and magnitude of the association between procedural justice and trust in judges depends on outcome concerns, and other sociolegal moderators such as outcome importance and prior court experience. We tested our predictions in three different types of law cases among 483 litigants at court hearings of the district court of the Mid‐Netherlands. As predicted, our results indicate that perceived procedural justice was positively associated with trust in judges when outcomes were relatively favorable, and that this association was even stronger when outcomes were relatively unfavorable. The courtroom context studied here enabled us to explore how other sociolegal variables moderated these relationships.     

The Politics of Benchcraft: The Role of Judges in Mental Health Courts

Mental health courts (MHCs) offer community‐based treatment in lieu of criminal prosecution for chronic offenders with psychiatric disabilities, and MHC judges enjoy expanded powers to achieve the court's objectives. Because scholars know little about how judges transition into a new occupational role in the problem‐solving courtroom, this ethnographic study of four MHCs in the United States focuses on how judges learn to orchestrate their responses to treatment noncompliance in this novel court setting. The goal of this article is to examine the professionalization of MHC judges and the emergent craft of therapeutic adjudication. To achieve this goal, I investigate judicial strategies for motivating, questioning, and defending participants accused of wrongdoing. I conclude that the art and practice of problem‐solving justice requires judges to rise to the larger institutional challenges embedded in the alternative courtroom, a process I call the politics of benchcraft.     

British Torture,Then and Now: The Role of the Judges

This article is concerned with the return of torture and other related abusive conduct to the British counter‐insurgency arsenal following the initiation of military engagements in Afghanistan and Iraq in the early 2000s. It focuses primarily on how judges have engaged with the challenges that this torture and abusive conduct have posed, both in their capacity as judges proper and also as appointees to a range of inquiries that have been initiated in the wake of these actions. The article contrasts the post‐2001 work of judges with that during an earlier episode when such state abuse was also evident, Northern Ireland in the 1970s. Arguing that the judiciary has been drawn into the fray much more heavily than in the 1970s and across a great range of platforms, the article analyses this judicial involvement and posits explanations for it against the backdrop of a changing UK politico‐legal culture.     

Judges’ views on evidence of genetic contributions to mental disorders in court

This preliminary analysis assesses how judges view the use of behavioral genetics evidence on genetic influences to mental disorders in court. Twenty-one semi-structured interviews, analyzed using constant comparative analysis, were conducted with California trial court judges. Most judges reported the beneficial effects of this evidence being presented in court, particularly as a mitigating factor for sentencing. Yet some judges viewed it as an aggravating factor and expressed concerns about genetic privacy. Judges described initial reactions to being potentially presented with evidence on genetic influences to mental disorders as apprehension, curiosity, and sympathy. Judges also reported putting significant trust in experts on these issues. Findings suggest some judges are skeptical of this evidence, but largely open to its presentation. Sympathetic reactions may result in mitigating attitudes of some judges. As judges significantly trust experts, some judges could also be overly trusting of genetic evidence and expert opinion on these issues.     

Communicating Dissent in Judicial Opinions: A Comparative,Genre-Based Analysis

To date, there has been surprisingly little research on separate opinions in legal linguistics literature. Scarce attention has been paid to the linguistic and communicative aspects of how judges frame their disagreements. This paper serves as one of the early attempts to examine the institution of votum separatum, or separate opinion, from a comparative, cross-language perspective using a linguistic methodology. The evidence indicates a clear similarity in terms of how separate opinions are integrated within the respective macrostructures of the US SC opinions and the Constitutional Tribunal judgments. This study demonstrates how judges tend to employ highly formulaic expressions to signal their disagreement despite the absence of clear guidelines to communicate such stances. The analysis of their frequent phraseology demonstrates that declaring votum separatum and providing its justification are two different acts, not only legally but also linguistically, especially in terms of their formulaicity. The Polish and American justifications differ in the degree to which the frequent phraseology reveals peculiarities of judicial argumentation in addition to the presence of strong evaluative concerns.

     

Informal Institutions and Judicial Independence in Paraguay, 1954–2011

This article explains how informal institutions have prevented the emergence of autonomous judges in Paraguay between 1954 and 2011. The central argument is that co‐optation, clientelism, and judicial corruption considered as informal institutions, rooted during the dictatorship, have impeded the appearance of an independent judicial branch in the democratic regime. To test this hypothesis, the article relies on historical narratives, surveys, and semistructured interviews. The conclusions suggest that in countries that have experienced the consolidation of informal institutions oriented toward maintaining the ties of subordination of judges to politicians, constitutional reforms and fragmentation of political power are necessary but not sufficient conditions for improving judicial independence.