Epstein, Landes, and Posner: The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice

Professor Dr. Lee Epstein, Professor Dr. William M. Landes, and Senior Circuit Judge Richard A. Posner, have published The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, 2013).

Here is the publisher’s description:

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 the authors’ 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.

HT @law_book

Escresa and Garoupa on Judicial Decision Making on the Philippine Supreme Court, an Empirical Analysis 1986-2010

Dr. Laarni Escresa of Institut für Recht und Ökonomik der Universität Hamburg and Professor Dr. Nuno Garoupa of the University of Illinois College of Law, have published Judicial Politics in Unstable Democracies: The Case of the Philippine Supreme Court, an Empirical Analysis 1986-2010, forthcoming in Asian Journal of Law and Economics.

Here is the abstract:

In this paper we investigate empirically the determinants of judicial behavior at the Philippine Supreme Court in the period 1986-2010. Our results show an important alignment between individual Justices and the interests of the presidential appointers, although it varies across presidential terms. We discuss these empirical results in the context of the Philippine unstable democracy and the implications for the comparative literature on judicial behavior.

HT Professor Dr. Michael Heise.

Kahana on Legal Intelligent Software Agents: Germinating Seeds of Agency

Eran Kahana, Esq., of CodeX: The Stanford Center for Legal Informatics, and DataCard Corporation has posted two more installments (numbered III and IV) in his series of posts entitled Germinating Seeds of Agency, at The CodeX Blog.

Click here for information about Mr. Kahana’s project entitled Autonomous Intelligent Cyber Entity (AiCE).

Narchet et al. on Modeling the Influence of Investigator Bias on the Elicitation of True and False Confessions

Professor Dr. Fadia M. Narchet of the University of New Haven, Professor Dr. Christian A. Meissner of the University of Texas at El Paso, and Professor Dr. Melissa B. Russano of Roger Willliam University, have published Modeling the Influence of Investigator Bias on the Elicitation of True and False Confessions, forthcoming in Law and Human Behavior. Here is the abstract:

The aim of this study was to model various social and cognitive processes believed to be associated with true and false confessions by exploring the link between investigative biases and what occurs in the interrogation room. Using the Russano et al. (Psychol Sci 16:481–486, 2005) paradigm, this study explored how perceptions of guilt influenced the frequency and type of interrogation tactics used, suspect’s perceptions of the interrogation process, the likelihood of confession, and investigator’s resulting perceptions of culpability. Results suggested that investigator bias led to the increased use of minimization tactics and thereby increased the likelihood of false confessions by innocent participants. In contrast, the manipulation of investigator bias had no direct or indirect influence on guilty participants. These findings confirm the important role of investigator bias and improve our understanding of the decision-making process associated with true and false confessions.

New on VoxPopuLII: Hall on Electronic Voting and Direct Democracy

Dr. Joseph Lorenzo Hall of the UC Berkeley School of Information and the Princeton Center for Information Technology Policy has posted Electronic Voting and Direct Democracy, on the VoxPopuLII Blog, published by the Legal Information Institute at Cornell University Law School.

In his post, Dr. Hall describes the shortcomings of current electronic voting and Internet voting (e-voting) technology, and how those shortcomings are magnified when that technology is applied to citizen lawmaking processes, such as ballot initiatives. Dr. Hall then offers recommendations for improving e-voting systems generally, and in the context of direct democracy.

Dr. Hall’s post — which is particularly timely given calls to experiment with Internet voting during the fall 2010 U.S. elections — should be of interest to the egovernment community, as well as to those interested in citizen participation in lawmaking.

Hartley, Miller, & Spohn on Type of Counsel and Its Effect on Criminal Court Outcomes

Professor Dr. Richard D. Hartley and Professor Dr. Holly Ventura Miller, both of The University of Texas at San Antonio Department of Criminal Justice, and Professor Dr. Cassia Spohn of The Arizona State University Department of Criminology and Criminal Justice, have published Do You Get What You Pay For? Type of Counsel and Its Effect on Criminal Court Outcomes, forthcoming in Journal of Criminal Justice. Here is the abstract:

Although the Sixth Amendment of the constitution guarantees assistance of counsel to indigent criminal defendants, questions exist about the quality of this representation. Critics assert that ‘you get what you pay for’ and that public defenders are less effective than privately retained counsel regarding criminal justice outcomes. Some research, however, reveals that public defenders are as effective as privately retained counsel because of their working relationships with prosecutors and judges, the so-called courtroom workgroup. The current study tested the assertion that ‘you get what you pay for’ by examining the effect of type of counsel (public defenders versus private attorneys) on four different case processing outcomes for a large mid-western jurisdiction. Results generally show that type of counsel has no significant direct effect. Tests for interaction, however, suggest that for some defendants, type of counsel interacts with other key variables to influence certain outcomes.

Click here for a summary of research findings and an outline of the article.

Click here for ABA Journal‘s summary of the article.

HT @ABAJournal.

Hanson on Jurats as Adjudicators in the Channel Islands and the Importance of Lay Participation

Timothy Hanson of Hanson Renouf has published Jurats as Adjudicators in the Channel Islands and the Importance of Lay Participation, 39 Common Law World Review 250-282 (2010) (Issue No. 3). Here is the abstract:

Many legal systems place great importance upon lay persons adjudicating in courts and tribunals but how those persons are chosen, the precise role that they perform and the qualities that they are supposed to bring to the legal process are issues that often excite lively debate. This paper is about the Channel Islands, which enjoy as part of their legal systems adjudicators known as Jurés-Justiciers or ‘Jurats’ who normally have no legal qualifications or training before being able to take up such posts. Historically, the Jurats have played an essential part in the Channel Islands being able to maintain their curious constitutional position in the British Isles by their knowledge and application of the customary laws prevailing in each island and their jealous protection of such customs from outside interference. Nevertheless, in the twenty-first century, when legal principle from one jurisdiction can more readily influence the development of law in another related system and public expectations are no less demanding than elsewhere in the British Isles, it is important to reassess the role of the Jurats. In so doing, it will be readily appreciated that the Jurat system, albeit in need of some reform, is no mere curiosity of the past but something of which Channel Islanders can be justifiably proud.

Sartor on Doing Justice to Rights and Values: Teleological Reasoning and Proportionality

Professor Dr. Giovanni Sartor of Università di Bologna, Centro Interdipartimentale de Ricerca in Storia del Diritto e Informatica Giuridica (CIRSFID) has published Doing Justice to Rights and Values: Teleological Reasoning and Proportionality, forthcoming in Artificial Intelligence and Law. Here is the abstract:

This paper studies how legal choices, and in particular legislative determinations, need to consider multiple rights and values, and can be assessed accordingly. First it is argued that legal norms (and in particular constitutional right-norms) often prescribe the pursuit of goals, which may be in conflict one with another. Then a model of teleological reasoning is brought to bear on choices affecting different goals, among which are those prescribed by constitutional norms. An analytical framework is provided for evaluating such choices with regard to possible alternatives. The assessment of legislative choices according to proportionality is then considered, and is modelled using the provided analytical framework. Finally, the framework is expanded to include the ideas of reasonableness and institutional deference, and the corresponding margins of appreciation.

Schafer on ZombAIs: Legal Expert Systems as Representatives “Beyond the Grave”

Professor Burkhard Schafer the University of Edinburgh School of Law has published ZombAIs: Legal Expert Systems as Representatives “Beyond the Grave”, 7 SCRIPTed 384-393 (2010) (Issue No. 2). Here is a summary:

This paper will explore if the “artificial brains” software developed in AI research could become the next generation of tools to exercise control “beyond the grave” and create identify maintaining cues in the way Unruh described which is similar to the “personal backup” popularised in the novels of the Scottish writer Iain Banks. It will argue that such an approach could revitalise previously abandoned themes in legal AI research. In the first part, we develop an analysis of the methodological challenges encountered by legal AI research in developing systems that can autonomously interpret legal norms. In the second part we describe a new application, the use of expert systems in inheritance law, which can use the positive insights that were gained in the early days of research into legal AI, while avoiding the systemic methodological problems earlier, more ambitious projects had encountered.

Cross & Donelson on Creating Quality Courts

Professor Frank B. Cross of the University of Texas School of Law, and Professor Dr. Dain C. Donelson of the University of Texas McCombs School of Business, have published Creating Quality Courts, 7 Journal of Empirical Legal Studies No. 3, pages 490-510 (2010). Here is the abstract:

Numerous studies examine the importance of legal systems, yet there is little scholarship on how nations can improve their legal systems. Nations might try to invest more resources, including increasing overall budgets, increasing judicial salaries, or expanding the number of judges and/or courts. We examine data for a set of European nations, with a focus on the most effective way to use national resources to enhance judicial quality. We consider the effect of different uses of government resources and the effect of different judicial systems on measures of judicial quality, including independence, efficiency, the rule of law, and perceived impartiality.