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.     

Gender,Critical Mass,and Judicial Decision Making

We examine the role of gender in legal decision making by applying critical mass theory to the U.S. federal district courts. We analyze whether behavioral differences manifest themselves in the decision‐making proclivities of male and female judges, contingent on the existence of a critical mass of female judges at a court point (i.e., each city in which a district court is located). Our results indicate that women jurists exhibit distinctive behavior in certain cases when there is a critical mass of women at a court point. These differences are most significant in criminal justice cases; modest differences between men and women are also identified in civil rights and liberties cases. Gender is not significant in labor and economic regulation cases. These findings suggest that the increasing presence of women on the federal bench could have substantial policy ramifications in the American polity.     

Judicial Specialization and Ideological Decision Making in the US Courts of Appeals

We investigate the influence of subject matter expertise, opinion specialization, and judicial experience on the role of ideology in decision making in the courts of appeals in a generalized, as opposed to specialized, setting. We find that subject matter experts and opinion specialists are significantly more likely to engage in ideological decision making than their nonspecialist counterparts and that opinion specialization is a particularly potent factor in ideological decision making. Further, increased judicial experience has no effect on the conditional use of ideology. We discuss the potentially wide‐ranging implications of our findings for both theory and policy.     

论司法判决的不确定性

一般认为,司法判决是确定的,每个案件都存在着“唯一正确的答案”,这是一个常识性的错误。事实上,在判决的形成过程中,有多种不确定性因素在发挥着作用,因而,判决往往是不确定的。判决的不确定性主要来源于以下四个方面：即法律适用的不确定性、事实认定的不确定性,司法人员个性的不确定性和其他社会因素的不确定性。     

Experts Judging Experts: The Role of Expertise in Reviewing Agency Decision Making

What role does judicial subject matter expertise play in the review of agency decisions? Using a data set of decisions in which the Board of Patent Appeals and Interferences (BPAI) is reviewed by the Court of Appeals for the Federal Circuit, we investigate this question and find that greater subject matter expertise does make it more likely that a judge will vote to reverse an agency decision.     

Intimate Partner Violence: The Role of Suspect Gender in Prosecutorial Decision‐Making

Utilizing a sample of 8,461 cases involving heterosexual intimate partner violence, this paper examines the role of suspect gender in prosecutorial decision‐making. Four decision points are assessed: the decision to file charges (versus rejection for insufficient evidence); to file as a felony (versus a misdemeanor or probation violation); to dismiss for insufficient evidence (versus full prosecution); and to reduce felony charges to a misdemeanor or violation of probation. Suspect gender was found to be statistically significant in relation to all four outcomes in favoring female over male suspects. Numerous interaction effects were observed between gender and measures of prior arrest and offense severity in particular, suggesting that prosecutors distinguish between male and female suspects across these variables. We suggest that these data provide some support for recent qualitative research suggesting that court personnel are responsive to the gendered asymmetry of intimate partner violence, and may view female intimate violence perpetrators more as victims than offenders.     

蕴育在法院判决之中的合法预期

本文梳理最高人民法院公报中的益民公司等三起案件,以合法预期理论为分析工具,揭示出在传统行政救济框架中,政府信赖保护无法真正提升救济的程度与空间,只是增加法院判决的说理程度。而引入合法预期,却能改善程序保护,促进公正判决。     

司法决策中的“父爱主义”管制逻辑

在包括赵春华案在内的诸多引发舆论关注的争议案件中,法官或许并非不是不懂得如何利用社科法学的判断能力与法教义学的裁判技术去弥合司法标准与公众认知之间的巨大断裂,而更可能是基于其“父爱”式的社会“管制”取向而对司法后果的实质合理性问题做出了“爱之深,责之切”的价值决断。在中国特色社会主义法律体系已经形成的历史背景下,为了保证良法的颁行能够导向预期的善治,法律必须以其作为“社会交往机制”的系统潜力而彰显其公理性与司法的合理性。只有首先确立基于交往原则和承认社会自主性的权力逻辑与法律决策结构,那种体现“人性化”“人文化”和“人权化”的方法论逻辑才有可能在法律的运作中获得国家体制官僚无法武断拒斥的实效。     

司法裁判供给中的利益衡量:一种诉的利益观

任何提交司法机构要求予以审判的民事纠纷都必须具有一种获得本案司法裁判的必要性 ,对于这种必要性 ,大陆法系民事诉讼理论冠之以“诉的利益”。诉的利益概念的出现与利益法学思潮对民事诉讼领域造成的影响密切相关 ,其本质是国家在其司法裁判供给问题上的一种判断。诉的利益的判断过程实际上就是一个利益衡量的过程 ,这种利益衡量又主要在两个层面上进行 :一是原告与其他纳税人之间 ,二是原告与被告之间。在诉的利益问题上所进行的利益衡量存在一定的尺度 ,它要求法官立足于社会需求作出符合基本正义的衡平。     

Testing an Integration of Control Theories: The Role of Bonds and Self-Control in Decision Making

Since the redefinition of self-control (Hirschi, 2004) social bonding measures have been utilized as predictors or indicators of revised or decisional self-control. This approach departs from the prior literature which has hypothesized a selection effect of self-control on social bonds. To reconcile this discrepancy and explain the relationship among two self-control measures (attitudinal and revised self-control), an alternate model is proposed that explains the process of self-control on refrainment from offending at the situation level. Surveys using the vignette method for a hypothetical drunk-driving decision-making task were collected from large samples of young adults and inmates. Path analysis is used to model bonds and self-control as determinates of decisional self-control, thus indirectly influencing self-reported estimates of drunk-driving likelihood. Decisional self-control, attitudinal self-control and social bonds also directly affect intentions to drive drunk. Overall, the proposed model is supported. A strong direct effect of attitudinal self-control on drunk-driving likelihood remains while controlling for decisional self-control. There are relatively smaller indirect effects of social bonds and attitudinal self-control on drunk-driving likelihood, through their effects on decisional self-control. These findings support the need for the conceptual separation of bonds, attitudinal and decisional self-control as well as increased attention to differential effects of self-control.     

司法裁决的后果主义论证

后果主义论证是法律论证的一种形式,是实现合理的司法裁判和证成裁决结论的重要要素。司法中后果主义论证关注不同裁判方式所带来的可能后果,通过评判不同的后果来选择裁决结论。与一般情境中的后果论不同,司法裁决的后果主义论证主要出现在法官为正当化案件裁判所进行的二次证明中,它是基于可欲后果的证立,这种可欲后果是裁决的逻辑后果或一般后果。     

应急决策指挥方案优选的灰局势决策

评估优选方案是应急指挥决策活动中的重要环节和内容。分析了应急决策指挥方案的优选问题,为使决策过程不受主观因素的影响,结合应急救援工作的特点,采用灰局势决策方法对方案进行优选。灰局势决策方法通过一系列灰处理过程,得到一个可以评估各应急决策指挥方案的综合效果测度值,以此为标准对应急决策指挥方案进行评估优选。通过实例分析表明,该方法可行、有效、客观,对应急救援过程中的决策指挥具有重要的理论价值和现实指导意义。     

The Case for Large Participatory Conferences as a Means of Decision Making in International Environmental Law

As global environmental concerns such as climate change draw ever greater attention, there are increasing demands for national governments to engage in coordinated, internationally consistent decision making on environmental mandates, standards, and related matters. Are large participatory conferences the best means to achieve effective, consensus-based decision making in international environmental law? This article proposes two sets of reasons to answer this question affirmatively. First, legal reasons, since several sources of international law point to an incipient right to public participation in international environmental decision making, which could be satisfied by convening these conferences. And second, normative reasons, since allowing for participation is more consistent with the fundamental principles of liberty and equality, and participatory processes enhance the acceptance of the decisions and at the same time augment the possibilities of implementation.     

The Tort Remedy in Search and Seizure Cases: A Case Study in Juror Decision Making

Civil suits for damage awards against police officers alleged to have engaged in illegal searches have long been suggested as an alternative to the exclusionary rule as a remedy for police misconduct. A review of empirical literature on the incidence and outcomes of such suits suggests that defendant officers often prevail and that the awards do not seem large enough to produce the punishment and deterrence effect often claimed by proponents of the tort remedy. Using an experimental technique involving simulated trials and adults called for jury service as subjects, we examine the effects of two procedural aspects of such suits on juror awards. The extent of municipal liability and the substitution of the U.S. government as plaintiff do not appear to affect the incidence or size of compensatory or punitive damage awards. Denying jurors information about the outcome of the search does appear likely to increase damage awards. The article both explores factors affecting juror decision-making in these cases and illustrates the utility and limitations of the experimental method for testing suggested policy innovations.     

Role of Law Put to the Test: The Case of Judicial Rule-Making by Agreement

Netherlands International Law Review -     

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.     

司法裁判中法律事实与法律规范的关系

目前,学界关于司法裁判中法律事实与法律规范关系的论述,可以概括为以下四种推论关系、归类与涵摄关系、等置关系、评价关系。这四种方法在司法判决中各有其作用,但是学者们往往各执一端,将四者割裂开来。而实际上,逻辑推论关系确保了推理形式的正确性,而价值评价则保障了推理的实质合理性,归类与涵摄关系重点关注的是法律推理大小前提如何结合的问题,而等置关系似乎可以作为衡量归类或涵摄是否妥当的一个检测器。司法裁判中将四者有机结合起来,才能保证判决的合法性。     

Decision Making at the Firm Level: The of a Criminal Legal Aid Case Management System

The Criminal Legal Aid System, in Scotland as in England, is under severe economic strain. A key element in the legal profession's response should be reliance on IT in improving the efficiency of criminal legal aid case management. This paper is a work-in-progress report on our involvement (under a Teaching Company Scheme Project) with a Glasgow criminal practice and their use of an existing case management and automation tool. Although the focus of the research is on improving the scope of the present system, our work has involved us in an exploration of decision-making processes at the level of the firm and the role of computerisation and automation at all levels in the firm. More specifically, our investigations focus on the interaction of the fee earners and paralegals in the use they make of information and how, applying management science techniques, they could improve on that use. This in turn led to a reconsideration of how the case management system uses information available to the differing levels of “decision makers” within the firm. This creates an interesting contrast with the “decision making” process at the level of adjudication.     

Decision Making in Delinquency Cases: The Role of Race and Juveniles' Admission/Denial of the Crime

Investigated how accused delinquents' admission/denial of their crimes affected adjudication and disposition decisions. An archival analysis of 2,043 adjudication decisions in 16 Georgia counties found that juveniles who admitted committing their crimes were treated more severely than juveniles who denied committing their crimes. Whites were more likely than Blacks to admit committing the crime, and, after controlling for this and other legal factors, race did not have a significant effect. In the second study, 67 judges, 53 probation officers, and 126 court service workers made adjudication and disposition decisions about three juveniles in an experimental simulation in which race of juvenile, length of prior record, and the juvenile's reaction to the crime (admitting or denying it) were systematically manipulated. Consistent with the archival study, juveniles who admitted committing their offense were treated more severely than juveniles who denied committing their offense. Possible reasons are discussed for why admitting a crime leads to more punishment.