This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge‘s confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge‘s voting‘s is affected by the voting of the other judges he serves with. We find a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).
{"title":"Rational Judicial Behavior: A Statistical Study","authors":"W. Landes, R. Posner","doi":"10.1093/JLA/1.2.775","DOIUrl":"https://doi.org/10.1093/JLA/1.2.775","url":null,"abstract":"This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge‘s confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge‘s voting‘s is affected by the voting of the other judges he serves with. We find a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86094512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination. The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants. This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants. Absent the plea bargain option, many defendants would not have been charged in the first place. Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.
{"title":"The Prisoners’ (Plea Bargain) Dilemma","authors":"O. Bar‐Gill, O. Ben‐Shahar","doi":"10.1093/JLA/1.2.737","DOIUrl":"https://doi.org/10.1093/JLA/1.2.737","url":null,"abstract":"How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination. The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants. This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants. Absent the plea bargain option, many defendants would not have been charged in the first place. Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91364414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Bonham's Case (1610) as reported by Sir Edward Coke has often been regarded as an early instance of judicial review of legislation. Lawyers, particularly in the United States, have taken it as a common law precedent for permitting judges to strike down unconstitutional statutes. Using contemporary evidence from English and Continental legal works, this article contends that Bonham's Case actually rested upon then commonly accepted principles of the law of nature, and that those principles stopped short of embracing judicial review in the modern sense. The argument depends on establishing four points: first, that Coke accepted the existence of natural law and used it in his own writings; second, that the facts of Bonham's Case lent themselves naturally to application of the law of nature to a parliamentary act; third, that as understood at the time, natural law did not permit judicial invalidation of statutes; and fourth, that other contemporary evidence supports this more restrained understanding of Coke's statements in Bonham's Case. In its contemporary setting, the case was therefore compatible with Parliamentary supremacy. It well illustrates, however, one way in which the law of nature was applied in actual litigation.
据爱德华·科克爵士(Sir Edward Coke)报道，博纳姆案(1610)通常被视为立法司法审查的早期案例。律师们，尤其是美国的律师们，已经将其作为允许法官推翻违宪法规的普通法先例。本文利用来自英国和大陆法律著作的当代证据，认为博纳姆案实际上建立在当时普遍接受的自然法原则之上，而这些原则没有包括现代意义上的司法审查。这个论点建立在四点基础之上:第一，科克接受自然法则的存在，并将其运用到自己的作品中;第二，伯纳姆案的事实自然适合于将自然法应用于议会行为;第三，按照当时的理解，自然法不允许在司法上宣告成文法无效;第四，其他当代证据支持对可口可乐在博纳姆案中的陈述的更克制的理解。因此，在当时的背景下，这一案件与议会至上是相容的。然而，它很好地说明了自然法则在实际诉讼中的一种应用方式。
{"title":"Bonham's Case, Judicial Review, and the Law of Nature","authors":"R. Helmholz","doi":"10.4159/JLA.V1I1.5","DOIUrl":"https://doi.org/10.4159/JLA.V1I1.5","url":null,"abstract":"Bonham's Case (1610) as reported by Sir Edward Coke has often been regarded as an early instance of judicial review of legislation. Lawyers, particularly in the United States, have taken it as a common law precedent for permitting judges to strike down unconstitutional statutes. Using contemporary evidence from English and Continental legal works, this article contends that Bonham's Case actually rested upon then commonly accepted principles of the law of nature, and that those principles stopped short of embracing judicial review in the modern sense. The argument depends on establishing four points: first, that Coke accepted the existence of natural law and used it in his own writings; second, that the facts of Bonham's Case lent themselves naturally to application of the law of nature to a parliamentary act; third, that as understood at the time, natural law did not permit judicial invalidation of statutes; and fourth, that other contemporary evidence supports this more restrained understanding of Coke's statements in Bonham's Case. In its contemporary setting, the case was therefore compatible with Parliamentary supremacy. It well illustrates, however, one way in which the law of nature was applied in actual litigation.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88920319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Every western society embraces the ideal of equality before the criminal law. However, as this Article observes, that ideal is understood differently in the United States and Continental Europe. American law generally demands that all citizens face an equal threat of punishment, while continental European law generally demands that all citizens face an equal threat of investigation and prosecution. This contrast raises a sharp normative challenge: Is it better to think of equality before the criminal law as pre-conviction equality or post-conviction equality? The Article makes the case that pre-conviction of the Continental kind is normatively superior. It then asks why American law has opted for what seems a normatively inferior solution, identifying a variety of factors in American culture and the common law tradition that have encouraged the belief that true equality lies in the equal threat of punishment rather than in the equal threat of prosecution.
{"title":"Equality in Criminal Law: The Two Divergent Western Roads","authors":"James Q. Whitman","doi":"10.4159/JLA.V1I1.8","DOIUrl":"https://doi.org/10.4159/JLA.V1I1.8","url":null,"abstract":"Every western society embraces the ideal of equality before the criminal law. However, as this Article observes, that ideal is understood differently in the United States and Continental Europe. American law generally demands that all citizens face an equal threat of punishment, while continental European law generally demands that all citizens face an equal threat of investigation and prosecution. This contrast raises a sharp normative challenge: Is it better to think of equality before the criminal law as pre-conviction equality or post-conviction equality? The Article makes the case that pre-conviction of the Continental kind is normatively superior. It then asks why American law has opted for what seems a normatively inferior solution, identifying a variety of factors in American culture and the common law tradition that have encouraged the belief that true equality lies in the equal threat of punishment rather than in the equal threat of prosecution.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79486065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Many-minds arguments are flooding into legal theory. Such arguments claim that in some way or another, many heads are better than one; the genus includes many species, such as arguments about how legal and political institutions aggregate information, evolutionary analyses of those institutions, claims about the benefits of tradition as a source of law, and analyses of the virtues and vices of deliberation. This essay offers grounds for skepticism about many-minds arguments. I provide an intellectual zoology of such arguments and suggest that they are of low utility for legal theory. Four general and recurring problems with many-minds arguments are as follows: (1) Whose minds?: The group or population whose minds are at issue is often equivocal or ill-defined. (2) Many minds, worse minds: The quality of minds is not independent of their number; rather, number endogenously influences quality, often for the worse. More minds can be systematically worse than fewer because of selection effects, incentives for epistemic free-riding, and emotional and social influences. (3) Epistemic bottlenecks: In the legal system, the epistemic benefits of many minds are often diluted or eliminated because the structure of institutions funnels decisions through an individual decisionmaker, or a small group of decisionmakers, who occupy a kind of epistemic bottleneck or chokepoint. (4) Many minds vs. many minds: The insight that many heads can be better than one gets little purchase on the institutional comparisons that pervade legal theory, which are typically many-to-many comparisons rather than one-to-many.
{"title":"Many-Minds Arguments in Legal Theory","authors":"Adrian Vermeule","doi":"10.4159/JLA.V1I1.7","DOIUrl":"https://doi.org/10.4159/JLA.V1I1.7","url":null,"abstract":"Many-minds arguments are flooding into legal theory. Such arguments claim that in some way or another, many heads are better than one; the genus includes many species, such as arguments about how legal and political institutions aggregate information, evolutionary analyses of those institutions, claims about the benefits of tradition as a source of law, and analyses of the virtues and vices of deliberation. This essay offers grounds for skepticism about many-minds arguments. I provide an intellectual zoology of such arguments and suggest that they are of low utility for legal theory. Four general and recurring problems with many-minds arguments are as follows: (1) Whose minds?: The group or population whose minds are at issue is often equivocal or ill-defined. (2) Many minds, worse minds: The quality of minds is not independent of their number; rather, number endogenously influences quality, often for the worse. More minds can be systematically worse than fewer because of selection effects, incentives for epistemic free-riding, and emotional and social influences. (3) Epistemic bottlenecks: In the legal system, the epistemic benefits of many minds are often diluted or eliminated because the structure of institutions funnels decisions through an individual decisionmaker, or a small group of decisionmakers, who occupy a kind of epistemic bottleneck or chokepoint. (4) Many minds vs. many minds: The insight that many heads can be better than one gets little purchase on the institutional comparisons that pervade legal theory, which are typically many-to-many comparisons rather than one-to-many.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86606961","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：