Courts

Judicial Preference

by Eric Miller

Houston Law Review, Vol. 44, 2008

In this paper I claim that, where the judge possesses strong discretion, she has both a legal power and the legal... more In this paper I claim that, where the judge possesses strong discretion, she has both a legal power and the legal right to decide whichever way she wishes. Neither law nor morality provides a decisive ground for decision and all that is left is her taste or inclination.

Perhaps because it looks like a naked exercise of power, the judge's predilections are not a terribly popular basis for judicial decision. Preference is often characterized as non-rational: as having no basis in reason because not based upon some unique reason requiring a particular decision. Reason-based decision, by contrast, is represented as demonstrating that some decisive reason overrides competing ones to settle the outcome of a legal dispute, independent of the judge's will. Absent such a reason, judicial decision consists an arbitrary exercise of the power authoritatively to resolve cases.

I claim that the judge's personal preference or predilection operates as a legitimate basis for judicial decision in cases presenting strong discretion. Strong discretion exists wherever legal rules conflict, and there is no decisive reason determining the outcome. In such circumstances, each of the conflicting rules is undefeated and there is no incorrect thing to do. The judge has both a legal power and a legal right to decide whichever way she wishes.

I contrast my strong discretion thesis with the claim that the judge has only "weak" discretion to resolve the case because extra-legal reasons bind the judge. In particular, I demonstrate that Ronald Dworkin and Joseph Raz, who are often thought to entertain diametrically opposed theories of law, both endorse weak discretion in adjudication and do so for similar, though mistaken, reasons.

Whatever the merits of the weak discretion thesis generally, I argue that strong discretion and preference-based decision is an inevitable and useful feature of complex legal systems. It encourages judges to experiment with different outcomes in circumstances in which they have only a limited ability to foresee the consequences, and no way to determine which among the possible consequences is best.

Drugs, Courts, and the New Penology

by Eric Miller

Published in Stanford Law & Policy Review, Vol. 20, No. 2, 2009

The drug court innovation has had a major impact upon low-level judicial attitudes to drug crime. The drug court’s... more The drug court innovation has had a major impact upon low-level judicial attitudes to drug crime. The drug court’s success is primarily achieved through suppressing the larger political debates surrounding drug policy through the therapeutic emphasis on a politics of personal responsibility. Bipartisan agreement has, however, come at the cost of precluding a discussion of the relation of drug crime to race and class in the urban setting, and ignoring the manner in which the state has exacerbated the problems of drug addiction for those caught in the criminal justice system. Perhaps courts are the wrong place for such policy discussions. Nonetheless, they remain essential to addressing the social causes of drug use in the inner cities. As an alternative, I have suggested reformulating the grand jury to take over some of the duties of the drug court judge. My goal is to generate empowered deliberative democracy at the local level, and mitigate some of the effects of the drug court’s therapeutic use of discipline, while including more partners in the discussion of urban drug policy. Few people have recognized that the drug court’s therapeutic methodology is not a repudiation of politics but one that takes sides by embracing a coercive vision of justice based on a version of positive liberty. In particular, the court’s rejection of due process in favor of treatment expresses the now-classic opposition between positive and negative liberty; that is, the freedom to be left alone and the freedom to “determine someone to be...this rather than that.” Most critics who oppose the drug court’s methodology simply call for a return to a courtroom practice centered around due process protections as a form of negative liberty to protect vulnerable defendants against intrusive state power. I suggest a third concept of freedom, one that emphasizes a mutual respect for members of the community as peers sharing diverse values. That form of freedom can only emerge through non-coercive interaction in the public sphere through low-level political organizations. Accordingly, as an alternative to the current structure of drug courts, I propose both a more radical and a more natural structure for court-based drug rehabilitation: a grand jury model rather than a judicial one. Adopting the grand jury structure replaces the hierarchical relation between judge, on the one hand, and community and offender, on the other, with a horizontal relationship between community, offender, and law enforcement. The grand jury model envisages a reciprocal relationship between the community, addicts, and service providers, in which those serving on these drug-dedicated grand juries would be educated about the range of problems faced by and resources available to the drug-addicted and would, in turn, educate service providers and law enforcement officials about community needs. Properly constituted, the grand jury may both supervise addicts within a rehabilitation program and redirect others out of the system or onto a more traditional form of court disposition.

Preliminary References - Analyzing the Determinants that Made the ECJ the Powerful Court It Is

by Lars Hornuf

Co-authored with Stefan Voigt

The European Court of Justice (ECJ) is a very powerful court compared to other international courts and even national... more The European Court of Justice (ECJ) is a very powerful court compared to other international courts and even national courts of last resort. Observers almost unanimously agree that it is the preliminary references procedure that made the ECJ the powerful court it is today. In this paper, we analyze the determinants that lead national courts to use the procedure. We add to previous studies by constructing a comprehensive panel dataset (1982–2008), including more potentially relevant explanatory variables and by testing for the robustness of previous results. In addition to confirming the relevance of variables previously found significant, we identify a number of additional determinants, including the relevance of agriculture to a country, corporate tax rate, familiarity with EU law, and tenure of democracy.

When Staying Discovery Stays Justice: Analyzing Motions to Stay Discovery When a Motion to Dismiss is Pending

by Kevin Lynch

47 Wake Forest Law Review 71 (2012)

Discovery plays a central role in our judicial system, and while discovery provides many benefits to the parties and... more Discovery plays a central role in our judicial system, and while discovery provides many benefits to the parties and to the courts, it also imposes burdens and costs. Discovery reduces informational asymmetries, clarifies claims and defenses for trial, and encourages settlement. But it costs money to take depositions of witnesses, produce documentary evidence, and pay for the time of experts and lawyers. When a motion to dismiss is filed, the possibility that discovery will not be necessary presents a risk of wasted resources if discovery is not stayed while the motion to dismiss is resolved. However if discovery is stayed and the motion to dismiss is ultimately denied, even in part, then the entire case was delayed unnecessarily. Delay also presents a risk of deterioration of evidence as documents are lost, memories fade, or witnesses become unavailable. These are the considerations that judges must weigh against one another when deciding a motion to stay discovery due to a pending motion to dismiss.

Despite the importance of judicial decisions regarding discovery stays, this issue has received hardly any attention from legal scholars. This may be due to the relative scarcity of appellate decisions laying out standards for deciding motions to stay discovery, or it may be due to the difficulties in gathering reliable data on the discovery process. This Article fills this gap by examining what judges are doing currently on motions to stay discovery and recommending prescriptions for what judges should do in order to exercise their discretion and promote the goals of the Federal Rules of Civil Procedure. Relying on extensive research into federal court cases discussing discovery stays, the Article identifies eight primary considerations that affect discovery stays and provides guidance to judges regarding the appropriate standard to apply based on the characteristics of individual cases, focusing on the benefits of efficiency and transparency.

The Article proceeds in five parts. Part I lays out the issue of discovery stays when a motion to dismiss is pending. Part II provides background on the costs and burdens of discovery, the various interests at stake, and the judicial role overseeing discovery. Part III presents the current state of the law by looking at the various standards that courts have explicitly applied when deciding motions to stay discovery. Part IV develops a framework for understanding and reconciling existing precedent on discovery stays with reference to eight primary considerations. Part IV also lays out a prescription for judges to use in exercising their discretion in this context. Part V examines the broader issue of “discovery abuse” and specific cases where discovery is automatically stayed while also noting areas for further inquiry into this issue.

The Courts/Parliament Trade-off: The View from the Canadian Election Study

by J. Scott Matthews

Co-authored with Elizabeth Goodyear-Grant and Janet Hiebert
Presented at the AGM of the Canadian Political Science Association, 2010

Divided justice, different voices: inheritance and family provision

by Fiona Cownie

[Russland] VerfGE vom 2.11.2011 zur Vollstreckungsfrist bei ausländischen Schiedssprüchen

by Leonid Shmatenko

To be published

[Will appear after publication] [Will appear after publication]

ПРИНЦИП ПРОПОРЦІЙНОСТІ В РІШЕННЯХ КОНСТИТУЦІЙНОГО СУДУ УКРАЇНИ

by Bronislav Totskyi

Опубліковано: «Студентський юридичний журнал». Додаток до журналу «Право України». - № 3/2011 М.Київ: Видавничий дім «Ін Юре». – сс.39 – 45.

Judging Empire: Courts and Culture in Rome's Eastern Provinces

by Ari Bryen

Tradition, Precedent, and Power in Roman Egypt

by Ari Bryen

Dionysia's Complaint

by Ari Bryen

FLYER: THE CYBERCRIME HANDBOOK

by Art Bowker

In the early 1990s, professionals began to question how to address offender computer use while on supervision, but in... more In the early 1990s, professionals began to question how to address offender computer use while on supervision, but in the past ten years, tools emerged that were specifically developed
for triage and field forensics. As these were rapidly embraced, it was still unclear what professionals could look for, how to look for it, and how to interpret what they found. This unique book resolves those issues. The book provides a clear outline of what can and should be done regarding the management of offender computer use. Not only does the text help community
corrections professionals understand how to monitor computer use, but it helps realize how information gained during monitoring can assist in overall case management. The book takes the reader through all the paces of managing offender cyber-risk
and is meant specifically for pretrial, probation, parole, and community sanction officers. The chapters are organized by major areas, such as community corrections and cyberspace, understanding the options, condition legality, operational legality,
accessing cyber-risk, computer education, principles of effective computer monitoring, search and seizure, deploying monitoring software, and online investigations. Additionally, numerous appendices provide a wealth of information regarding model forms, questionnaires, and worksheets. This book moves the reader toward a more informed use of the technology that is now readily available to effectively manage offenders' digital behavior.

An Updated Perspective of the Hunch in Judicial Decision Making

by Diana Constantinescu

Please do not cite without permission. Feedback most welcome!

Will be presented at the "New Frontiers of Legal Realism: American, Scandinavian, European, Global" international conference in Copenhagen, 29-30 May 2012 (http://jura.ku.dk/crs/english/calendar/new-frontiers-of-legal-realism/)

In this essay I wish to approach an issue which is consistently disregarded in current jurisprudential debates – the... more In this essay I wish to approach an issue which is consistently disregarded in current jurisprudential debates – the issue of the judicial hunch. I wish to argue that hunches and intuitions happen much more often than we think; they are present at all levels of the judiciary, in easy and hard cases, at all levels of expertise. In fact, my argument goes stronger than that: hunches are an essential component of the act of judging. I also wish to show that “legal reasoning”, if it has to be used properly, designates but part of the judicial decisionmaking process, and it has less importance than legal theorists usually give it.

In our judicial decisionmaking discussion I wish to introduce two new types of theories which are useful in understanding what judicial hunches are and what role they play in the act of judging. The first one is already widely accepted in psychology and has strong supporting evidence from neuroscience; I will call it the fast/slow thinking distinction. The second theory is based on recent neurological findings and represents the new psychological paradigm of intuition. It tries to answer questions and dilemmas which legal theorists will find familiar: Is intuition rational or emotional? Do feelings influence intuition? Is intuition a process or a result? What role does professional expertise have in intuition? Are intuitions “accurate”? And the list could go on. The applicability of these theories to judicial decisionmaking will become apparent once I flesh them out in the paper.


I thank Prof Stephen Guest (UCL), Prof Fred Schauer (Virginia), Prof Veronica Rodriguez-Blanco (Birmingham/EUI) and John Rumbold (Keel) for providing precious feedback which will lead to an improved version soon.

The Best Laid Schemes... Gang Aft A-Gley: Judicial Reform in Latin America – Evidence from Costa Rica

by Juan Carlos Rodríguez-Cordero

Co-authored with Bruce M. Wilson and Roger Handberg. Published in "Journal of Latin American Studies".

Starting in the 1980s, and accelerating through the 1990s, international financial institutions (IFIs),... more Starting in the 1980s, and accelerating through the 1990s, international financial institutions (IFIs), non-governmental organisations (NGOs) and development agencies funnelled considerable resources into judicial reform and rule of law programmes in virtually every Latin American and Caribbean country. The assumption was that reformed court systems would foster free market economic development strategies. This article examines the impact of two frequently advocated aspects of judicial reform, judicial access and judicial independence, on economic policy making in Costa Rica. We argue that there is a potentially significant disjuncture between the sponsors' expectations of the judicial reforms' economic impact and the observed outcomes.

(Re)equilibrios políticos en Costa Rica: El poder constituyente y el control de constitucionalidad

by Juan Carlos Rodríguez-Cordero

Published in "South Eastern Latin Americanist".

Title translation: "Political (Re)equilibria in Costa Rica: The Constituent Power and the Constitutionality... more Title translation: "Political (Re)equilibria in Costa Rica: The Constituent Power and the Constitutionality Control". Publicado en South Eastern Latin Americanist, Vol. XLV, No. 3/4, invierno/primavera de 2002, pp. 15-28 (Univ. of Central Florida-SECOLAS), actualmente The Latin Americanist (Southeastern Council on Latin American Studies/Wiley Periodicals). "Premio Sturgis Leavitt" (SECOLAS, 2002). El artículo ofrece una versión modificada del capítulo III de la tesis de Juan Carlos Rodríguez- Cordero: Las reformas constitucionales en el diseño del sistema político costarricense: el caso de la consulta preceptiva de constitucionalidad (1989-1997). Tesis para optar al grado académico de Magister Scientiae en Ciencias Políticas. San José, C. R., Sistema de Estudios de Posgrado de la Universidad de Costa Rica, Programa de Posgrado Centroamericano en Ciencias Políticas, 2001, 211 pp. Hay edición publicada [bajo el mismo título] por UMI (PROQUEST), Ann Arbor, MI., 2002, 211 pp.

Sala Constitucional y equilibrio de poderes

by Juan Carlos Rodríguez-Cordero

Ponencia para el IX Informe Estado de la Nación (2002)

La ponencia analiza cómo la Sala Costitucional ha ido delimitando las atribuciones de los legisladores de reformar... more La ponencia analiza cómo la Sala Costitucional ha ido delimitando las atribuciones de los legisladores de reformar parcialmente la Constitución Política y los nuevos equilibrios entre Poderes de la República. Hace referencia a la reforma constitucional aprobada en 1989. Destaca como una de las innovaciones del sistema de control de constitucionalidad el control preventivo en el caso de reformas constitucionales mediante la consulta previa. Estudia también cómo votan los jueces constitucionales como un aspecto central de políticas públicas, posiciones doctrinales relevantes, predictibilidad del sistema legal y actitudes.

A mayores previsiones... resultados imprevistos: Reforma Judicial en América Latina – Indicios sobre Costa Rica

by Juan Carlos Rodríguez-Cordero

Co-authored with Bruce M. Wilson and Roger Handberg. Published in "América Latina Hoy"

RESUMEN: A partir de la década de 1980, e intensificándose en la década de 1990, las instituciones financieras... more RESUMEN: A partir de la década de 1980, e intensificándose en la década de 1990, las instituciones financieras internacionales, las organizaciones no gubernamentales y las agencias de desarrollo destinaron gran cantidad de recursos a programas de reforma judicial y de Administración de justicia en prácticamente todos los países de América Latina y el Caribe. Se suponía que la modernización de los sistemas judiciales favorecería la estrategia de libre mercado y desarrollo económico. Este artículo analiza el impacto de dos temas centrales de la reforma judicial, el acceso a la justicia y la independencia judicial, en relación con la formulación de políticas económicas en Costa Rica. Nuestro argumento es que hay una gran posibilidad de que aparezcan discordancias entre las expectativas de los patrocinadores acerca del impacto económico de la reforma judicial y los resultados observados.

ABSTRACT: Starting in the 1980s, and accelerating through the 1990s, international financial institutions (IFIs), non-governmental organisations (NGOs) and development agencies funnelled considerable resources into judicial reform and rule of law programmes in virtually every Latin American and Caribbean country. The assumption was that reformed court systems would foster free market economic development strategies. This article examines the impact of two frequently advocated aspects of judicial reform, judicial access and judicial independence, on economic policy making in Costa Rica. We argue that there is a potentially significant disjuncture between the sponsors' expectations of the judicial reforms' economic impact and the observed outcomes.

Just a piece of cloth? German courts and employees with headscarves

by Dagmar Schiek

published in 33 (1) Industrial Law Journal (2004), 68-73

On 10 October 2002, and on 24 september 2003, the German Federal Labour Court and the German Federal Constitutional... more On 10 October 2002, and on 24 september 2003, the German Federal Labour Court and the German Federal Constitutional Court each delivered a decision on the consequences of wearing a headscarf for employees. Both courts appeared to protect the individual rights of women in question. The Federal Labour Court invalidated the dismissal of a salesperson based on the headscarf, and teh Federal Constitutional Court held that a school teacher must not be denied employment on the grounds of wearing a headscarf while teaching. However, both courts left room for manoeuvre in favour of clothing policies or general laicism, on the base ofn which women wearing headscarves could be dismissed or denied employment. Neither of the courts considered the requirements of equality law. This note discusses the potential and drawbacks of these arguments, in particular as regards equality of individuals at the intersections of gender and ethnicity.

Let's Work it Out (or We'll See You in Court): Litigation and Private Dispute Resolution in Vertical Exchange Relationships

by Fabrice Lumineau

Lumineau F. & Oxley J. 2012. “Let’s Work It Out (Or We’ll See You in Court): Litigation and Private Dispute Resolution in Vertical Exchange Relationships.” Organization Science, Forthcoming.

We examine how partners in vertical exchange relationships actually resolve disputes that are sufficiently serious to... more We examine how partners in vertical exchange relationships actually resolve disputes that are sufficiently serious to get lawyers involved. Reaching beyond the usual domain of organizational and management research, we leverage findings from law and economics to offer a novel organizational perspective on litigation and private dispute resolution, and we develop hypotheses about the likelihood of litigation in different exchange settings. Our empirical analysis generates three sets of new findings: First, counter to the received wisdom, we see that the involvement of lawyers does not necessarily signal the bitter end of an exchange relationship, because firms frequently manage to avoid litigation and resolve their disputes privately, and they do so in a manner that accords with our theoretical predictions. Second, we see that familiarity with exchange partners does not automatically lead to increased willingness to work things out; rather, our empirical results suggest that the impact of exchange duration on parties’ willingness to resolve disputes privately is contingent on the development of norms of cooperation: in the event that such norms do not develop, the probability of a litigated outcome actually increases over time. Finally, we see that firms’ willingness to work things out privately is also influenced positively by the shadow of the future. These findings are suggestive of a “discriminating alignment” between exchange characteristics and the choice of dispute resolution procedure, and they thus inject important new evidence into ongoing discussions about the legal underpinnings of different governance forms.

“Sic in amore furens. Painting as Poetic Theory in the Early Renaissance.” I Tatti Studies: Essays in the Renaissance VI, 1995, 145-69.

by Stephen J. Campbell