Improving the quality of the judiciary is a noble cause. I welcome the participation of social scientists in the endeavor. But it is an open question whether social science can meaningfully contribute. Left to their own devices, social scientists are likely to produce work of dubious value. Perhaps judges can… Read More »
In this Essay, I raise a metatheoretical question concerning the relationship between what seem to be two distinct categories of projects that might be lumped together under the rubric of empirical study of judicial performance. One kind of empirical project aims broadly at developing a social-scientific theory of judging, or… Read More »
Much has been written about the process by which judges reach decisions in cases governed by the common law, but very little has been done to test this process empirically. Most empirical efforts have attempted to determine whether and to what extent judges’ political views influence their legal decisions. My… Read More »
The primary goal of the Duke Law Journal’s Symposium on Evaluating Judging, Judges, and Judicial Institutions was to bring together judges and academics researching judges. Conversations between these groups can be constructive on both sides. Judges may benefit from learning about studies that show the influences on judicial performance or… Read More »
Lately, it seems that the Supreme Court has taken a strong interest in the question whether, and under what circumstances, religious speech and symbolism are constitutionally permissible in government-sponsored settings. Last Term, in Pleasant Grove City v. Summum, the Supreme Court considered whether a city had to allow the Summum religious… Read More »
Defenders of sex and race inequality often contend that women and people of color are better off with fewer rights and opportunities. This claim straddles substantive debates that are rarely considered together, linking such seemingly disparate disputes as the struggles over race-based affirmative action, antiabortion laws, and marital rape exemptions.… Read More »
In 1930, during the Great Depression, Professor Karl Llewellyn declared in the Harvard Law Review that “ferment” was abroad in the law, proclaiming “realism” a powerful new scholarly force. In the past year, we have seen our own ferment: the world has shown us the folly of law’s most powerful… Read More »
For the last several decades, the primary divide in American constitutional theory has been between those theorists who label themselves as originalists and those who do not. It is widely understood that the side that does not embrace originalism is populated by proponents of a vast array of disparate constitutional… Read More »
“Originalism Is Bunk.” The title seems to promise a polemic. I hope, however, that most readers will find the Article shorter on polemic and longer on analysis than they might have anticipated. My ambition in writing the Article was not to bury originalism but to evaluate it—ideally, with fairness and… Read More »
Procedural evolution in complex cases seems to have left the civil jury behind. The trend toward centralizing cases pending on the same topic in one court results in cases of national scope being tried by local juries; this reality is a catalyst for forum shopping and a frequent justification for… Read More »