My article Funding Irrationality addresses a relatively unexamined issue in the literature of class action settlements and public settlement funds: should the people who oversee a large settlement fund account for claimants’ irrational settlement decisions?
Much of the literature related to large settlements seeks to improve how judges and private… Read More »
Many of today’s problems are global in nature and scope. Collective action problems such as global climate change and systemic risk in capital markets threaten to affect every person on the planet. Yet because these problems transcend national boundaries, a single nation cannot solve them alone. So what do we… Read More »
Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that have been overlooked or ignored by the parties—on the ground that doing so is… Read More »
Political scientists and law professors have lately taken to asserting that quantitative studies of judging reveal worrisome findings about the rule of law in the U.S. judicial system. The authors of Are Judges Political? declare: “variations in panel composition lead to dramatically different outcomes, in a way that creates serious… Read More »
Prior to the conference, the organizers asked me for my thoughts on how an anthropologist might approach the problem of studying judging. Those thoughts follow. I have subsequently reflected on the discussion at the conference itself, and I conclude this essay with those reflections.
When I think of “judging” as… Read More »
I.
Introduction: The Conflict over the Rule of Law
This symposium asks how we can quantify and evaluate what judges do. Some of the papers are skeptical of attempts at quantification. These questions are of importance to legal historians, who frequently seek to link judicial behavior to larger cultural, economic, and… Read More »
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 »