Legal Ethics & Legal Practice

Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney

Jeffrey Bellin & Junichi Semitsu

In Snyder v. Louisiana, the Supreme Court reaffirmed its commitment to rooting out racially discriminatory jury selection and its belief that the three-step framework established in Batson v. Kentucky is capable of unearthing racially discriminatory peremptory strikes.  Yet, the Court left in place the talismanic protection available to those who might misuse the peremptory challenge— the unbounded collection of justifications that courts, including the Supreme Court, accept as “race-neutral.” Read More »

Chasing the Greased Pig Down Wall Street

Donald Langevoort - Thomas Aquinas Reynolds Professor of Law, Georgetown University Law Center

             Of all the questions about why the recent financial mess happened, the most troublesome have to do with why large, supposedly sophisticated financial institutions took on so much risk.  There are many possible responses, some of which are about informational asymmetries, others about agency costs and moral hazards, and… Read More »

Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence

Stephen Gillers

“My client came to my office with a loaded gun, burglar’s tools, and a stolen Picasso. These can each be traced to him through fingerprint evidence or in other ways. Theft of the Picasso is headline news, but police say they have no leads. What do I do now?”
A… Read More »

Did the Madisonian Compromise Survive Detention at Guantanamo?

Lumen N. Mulligan - University of Kansas Law School

This Essay takes up the Court’s less-heralded second holding in Boumediene v. Bush—that a federal habeas court must have the institutional capacity to find facts, which in Boumediene meant that a federal district court must be available to the petitioners. Although this aspect of the opinion has gone largely unnoticed,… Read More »

Blind Expertise

Christopher T. Robertson - Harvard Law School

Litigants, attorneys, judges, and jurors are thought to be the main players in the civil litigation system. However, expert witnesses are also required in the vast majority of civil trials. The expert witnesses are the ones who, for instance, tell the factfinder whether a mistake has been made in medical… Read More »

Notice-and-Comment Judicial Decisionmaking

Michael Abramowicz & Thomas B. Colby

In this Article, we propose that courts should make draft opinions available to the public for comment (typically by posting them on the Internet) before issuing them in final form.  This proposal is not as wacky as it might first sound. A variant, in which draft opinions are distributed to… Read More »

Devising Rule of Law Baselines: The Next Step in Quantitative Studies of Judging

Brian Z. Tamanaha - Washington University School of Law

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 »

Justice and Judgment Among the Whomever: An Anthropological Approach to Judging

John Conley - University of North Carolina Law School

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 »

Quantitative Legal History—Empirics and the Rule of Law in the Antebellum Judiciary

Alfred L. Brophy - University of North Carolina Law School

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 »

Evaluating Judges

Harris Hartz - Tenth Circuit Court of Appeals

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 »