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Aims This study thus aimed to review and analyze liability lawsuits resulting from implant surgery-related inferior alveolar nerve (IAN) injury over a twenty-year period in France. Materials and Methods A retrospective descriptive study was performed to analyze judicial decisions pertaining to IAN injury from a legal database between 2000 and 2020. Inclusion criteria comprised all closed malpractice cases that involved an oral and maxillofacial surgeon or a dentist who performed a mandibular implant surgery resulting in IAN injury. The following data were recorded: judicial decision reference (including jurisdiction and date of final court ruling), timing between the incident and final court ruling, number of involved practitioners, patient's age and gender, practitioner's age and gender, implant type, number of implants, location of iatrogenic implant(s), allegation of IAN injury, alleged cause of injury, justification(s) for conviction, compensation amount and legal costs. Results Twelve judicial decisions from high civil courts relating to ten closed cases of liability lawsuits were included and analyzed. All of involved practitioners were dentists or oral surgeons, working in the private sector. Eventually, 85% of them were convicted. Mean indemnification was 17,340€ and highest indemnification was 42,828€ (inflation-adjusted in 2020 euros). Mean interval between the incident and final ruling was 87,1 ± 34,2 months. Conclusions Permanent nerve injury following dental implant placement can result in legal action. In the event of lawsuit, the risk of being convicted is high. Practitioners performing oral implantology procedures should practice effective risk management to avoid time-consuming unwanted litigations and administrative proceedings.

The question whether authoritarian regimes use transparency initiatives to improve public governance or only to perform window dressing remains open. To address it, we examine a recently promulgated transparency policy in China that mandates public access to all judicial opinions. We find that local courts fail to disclose more than 60% of their opinions in corporate litigation cases, measured against a baseline of publicly listed firms’ disclosure of their litigation, as required and enforced by the securities regulations. Instead of upholding judicial fairness, local courts disclose cases selectively, displaying favoritism and responding to private incentives. Courts are more likely to suppress the publication of their opinions when the firm involved in the litigation is state-owned or is the defendant in its home court, especially in the year before the promotion of the provincial party secretary. We also find that firms whose cases are disclosed by the courts undergo adverse economic consequences, signaling that they have fallen out of favor with the government.

This article examines the use of reflexive metadiscourse in majority and dissent opinions of the U.S Supreme Court (SCOTUS). In doing so, it deals with two largely overlooked phenomena in studies on judicial discourse and reflexive metadiscourse respectively. In relation to the former, it examines the phenomenon of separate opinions. In relation to the latter, it examines the discursive foci of reflexive metadiscourse in interactive written genres. Using two corpora, one containing 60 majority decisions (302,921 words in total); one containing 60 dissent opinions (223,149 words in total), the results show that judicial opinion writers used a similar overall amount of reflexive metadiscourse. The results also identify a number of significant differences in the frequency use of reflexive metadiscourse. In their use of reflexive metadiscourse, majority writers display a pronounced self-focus (i.e., focus on their own discourse); dissent writers display a pronounced other-focus (i.e., focus on the majority's discourse). Reflecting the overall trend identified, highly significant differences were also identified in the use of communicating, clarifying, and enumerating devices.

In this paper, I study the management of visuality in French courtroom proceedings with video links and remote participants. I show how Goffmann's interactionism and Conversation Analysis can be used to provide participants and analysts alike with a standpoint from which to push for a more ‘egalitarian’ organization of agency in such courtroom settings, and therefore with a distinctive way to for analysts to make their findings matter to participants. For that purpose, I first show how one can identify a ‘derivative’ order of interaction of video-mediated interaction in general, and how it may be deployed in a context-sensitive way in such courtroom situations. Second, I use this analysis to show how, when engaging with the judicial field, while such interaction-oriented research can say little about the judicial decisions themselves, it has a lot to show and to report regarding the fairness of judicial proceedings in video-mediated courtroom ecologies.

Judicial Decision Prediction (JDP) aims to determine judicial decisions per the fact description of a criminal case. It comprises multiple subtasks, i.e., law article prediction, charge prediction, and term of the penalty prediction. Besides, there exist three properties among the subtasks, i.e., Commonalities , Specificities , and Dependencies. Nonetheless, existing approaches are usually well-designed for only a specific subtask, or take one of the properties into consideration for multiple subtasks. In this paper, we propose a novel Commonalities-, Specificities- and Dependencies-Enhanced Multi-Task Learning Network, to unify multiple subtasks accompanied by the properties in a framework. Further, while handling the Dependencies, we elaborate a learning module to ensure each subtask to learn contributions from other subtasks to varying degrees, a denoising module to minimize noise interferences among subtasks, and a reinforcing module to guarantee further enhancement for each subtask. Experimental results on two widely used datasets demonstrate that our model significantly and consistently outperforms previous state-of-the-art methods on most evaluation metrics across all subtasks.

This article reports a corpus-aided analysis of stance adverbs within published judicial opinions from the 12 geographically-apportioned districts of the United States (US) Federal Courts of Appeals. The study first analyzes stance adverbs previously investigated in US Supreme Court decisions in order to more comprehensively explore these interactional features across multiple levels of the judicial system. Following this initial analysis, the study then examines variation in the use of stance adverbs between majority and dissenting opinions in Courts of Appeals opinions to identify salient similarities and differences in frequency and function in the two opinion types. The initial analysis reveals divergence in stance adverb use between the Courts of Appeals and the Supreme Court and between legal writing and other registers, indicating the prevalence and importance of stance adverbs within legal writing. Additionally, the study notes variation in stance adverbs between majority and dissenting opinions. This article details the variation of stance adverbs across these aforementioned contexts, discusses how the variation noted in the corpus analysis at times conflicts with the advice of legal writing style guides, and offers pedagogical implications of these findings for English for Legal Purposes instruction.

We had the opportunity to know a judicial decision in relation to a nonagenarian COVID-19 patient, which is clarifying regarding the complex issue of involuntary admission and involuntary treatment of the elderly. The judge authorized the involuntary admission but denied the possibility of imposing medical treatment against the will of the patient. This situation invites us to review the different types of involuntary admission that our legal system provides and how involuntary medical treatment is regulated according to its purpose and the patient's ability to decide. In the field of public health, the determining element to be able to impose any sanitary measure against the will of the patient is the risk to the health of the population. In the case presented, the judge rejects the possibility of authorizing medical treatment for not contributing anything from the point of view of public health. However, it does authorize involuntary admission as it is essential to guarantee isolation.

Background There have been a number of prominent lawsuits challenging the use of neurologic criteria to declare death in the United States. Methods To put these lawsuits into perspective, we conducted a search of Nexis Uni to identify cases from the past 50 years that involved objections to the use of neurologic criteria to declare death in the United States. Results We identified lawsuits about 67 decedents (59 state and 8 federal) from 34 different regions which were filed for crime-related issues (n = 42), hospital-related issues (n = 20), insurance-related issues (n = 2), and other issues related to time of death (n = 3). The judicial opinions about the lawsuits addressed: (1) acceptance of the use of neurologic criteria to declare death (n = 55), (2) criteria to declare death (n = 3), (3) management of decedents after death by neurologic criteria (n = 13), (4) identification of the time of death (n = 4), and (5) rights of the dead (n = 3). The outcomes of these cases were heterogeneous. Conclusions Since the incorporation of neurologic criteria into the medical practice of declaration of death, there have been a number of legal objections to its use. To avoid the rendering of variable opinions by the courts, there is a need for consistent legislative modification throughout the country to address (1) the specific criteria to use when declaring death by neurologic criteria, (2) management of religious objections to use of neurologic criteria to declare death, and (3) management after declaration of death by neurologic criteria.

Many decisions in life involve tradeoffs between two incommensurate options, so that one's choice reveals the values placed on the options. For example, judicial decisions weigh the possibilities of false convictions versus false acquittals. Using a signal detection model, this research demonstrate that Americans generally prefer a judicial error value tradeoff that favors relatively more false acquittals, a pattern generally consistent with the “Blackstone ratio” (i.e., 10:1) in legal history. At the same time, there is substantial variation in these error value tradeoffs and several individual difference measures were assessed as potential factors to account for this variation. Contrary to expectations, judicial error value tradeoff preferences were not significantly related to political liberalism/conservatism, individualism/communalism, social dominance orientation, or political party affiliation. There was, however, a significant relationship between greater authoritarianism and preference for less bias to avoid false convictions. A third study replicated this finding and extended the research scope to other error value tradeoff contexts (e.g., in military, immigration, and business regulation settings). Additionally, Study 3 found significant relationships between context-specific attitudes and libertarianism/authoritarianism, liberalism/conservativism, and social dominance orientation for immigration, military, business regulation contexts.

This book advances an entity theory of company law. It builds on the insight that organizations or firms are autonomous actors in their own right. They are more than the sum of the contributions of their participants. They also act independently of the views and interests of their participants. This occurs because human beings change their behavior when they act as members of a group or an organization. In a group we tend to develop and conform to a shared standard. When we act in organizations routines and procedures form and a culture emerges. These over time take on a life of their own affecting the behavior of the participants. Participants can themselves affect organizational behavior and modify routines, procedures and culture but this takes time and effort. Organizations are a social phenomenon outside of company law. Company law finds this phenomenon and provides it with a legal structure. It makes available legal personality and a procedural framework facilitating corporate decision making and corporate acting. Company law evolves with a view to supporting autonomous action through organizations. It will be shown in this book that a framework that conceives companies as vehicles for autonomous organizational entities that are characterized by their routines, procedures and culture explains the law as it stands at a positive level. The framework also helps to formulate normative recommendations guiding law reform and judicial decision making. An entity approach is sometimes associated with a normative argument advocating for more influence for stakeholders such as employees. This book does not take a position on the normative question whether stakeholders should have more influence than they currently have. The thesis of this book holds irrespective of how the law fine-tunes the influence over corporate decision making.

Introduced in 2016, the Insolvency and Bankruptcy Code overhauled the Indian insolvency regime. Five years young, the work in progress Code is now in the process of adopting the Cross-Border insolvency, which was omitted from its original mandate. In 2018, a legislatively appointed committee suggested that the Code should adopt the UNCITRAL Model Law on Cross Border Insolvency. However, the Committee overlooked a crucial jurisprudential guideline, which coloured the interpretation of the Model Law, which was delivered in a cross-border insolvency dispute between American and German regimes. An American bankruptcy court subjected the German administration of American Intellectual Property assets to a protection exclusively available within the American Bankruptcy Code. This paper studies the American judicial decisions in the Samsung v. Jaffe dispute to identify and underline the importance of its directive. The study reveals that there is virtually no guidance on how an intellectual property license is treated within the Indian insolvency regime. The authors underline the importance of such guidance considering the proposed adoption of the Model Law and suggest legislative inquiry in the issue.

This open access textbook for a survey course on intellectual property law contains 28 chapters, each with introductory material, learning outcomes, and one or two judicial opinions. Each opinion is accompanied by a set of questions to focus the reading and guide further discussion. This set of materials is designed for instructors who seek to have a discussion on one or two cases per class session, supplemented by lectures and active-learning activities.

This essay is a contribution to the symposium on “Globalizing Democracy and Distrust,” organized by Michaela Hailbronner and Rosalind Dixon. It shows that John Hart Ely’s defense of judicial review, as elaborated in his book, "Democracy and Distrust," has had little influence in Bolivia and Chile. However, that observation does not mean that a theory justifying judicial review when a political market failure is identified, is useless for examining both countries’ judicial decisions. The author argues that an Ely-an procedural approach to judicial review can help justify or reject Chilean and Bolivian rulings—or judicial inactions—if certain conditions are taken into account to adapt Ely’s theory to both jurisdictions

What are the effects of collaboration strategies over health litigation? Literature has shown that health litigation decisions are mostly in favor of claimants regardless of what is requested. Based on the notion that presenting a single unite front where state attorneys and health officials join forces increases the chances of having a case decided against claimants, this paper investigates effects of interorganizational collaboration, using geographical proximity between state attorneys’ offices and health authorities as a measure of their collaboration. Results from a logit model using healthcare cases from the State of Sao Paulo indicate that the closer these organizations are, the higher are their chances of success before courts, even when we control for other aspects that might be influencing the judicial decisions or cases themselves.

The use of pop culture references in judicial opinions—sometimes referred to as “dropping pop”—is unfortunately a growing trend. This Article presents the 2021 Briseno v. Henderson opinion as an illustration of the harms of unnecessary pop culture references. It provides a thorough analysis of the numerous ways in which pop culture references in judicial opinions are ill advised. It also addresses the arguments in favor of the practice, providing counterarguments to show why any purported benefits are exaggerated and far outweighed by the downsides. Then advice for judges, including best practices, is given. The Article concludes by providing suggested language for the Model Code of Judicial Conduct regarding pop culture references. Pop culture references are often misunderstood, which can lead to a misunderstanding of the case. Traditionally marginalized populations are particularly vulnerable to this, as they often do not share the same exposure to pop culture as predominantly white judges. They result in litigants believing that the judge was arbitrary, irreverent, and making fun of their plight. They blur the lines between fictional entertainment and the real-life legal system. They are perhaps indicative of a judge who is focusing on self-promotion at the cost of sound legal analysis. And they can be distracting, especially when the reader finds the reference offensive. Any net benefit gained by the entertainment value some experience from a pop culture reference is offset by the confusion and disagreement by others. And pop culture references are not necessary to create an engaging opinion. These references can serve as “seductive details” drawing attention away from the legal holding. They are likely not as persuasive as some advocates claim, and even if they were, persuasion is not a primary goal of a judicial opinion. The general public may find pop culture references in judicial opinions interesting, but this likely comes at the cost of diminished respect for the judicial system.

The COVID-19 pandemic of 2020-21 has focused our attention on contract law’s response when unanticipated circumstances make performance impractical or frustrated or performance would cause harm to the public. The pandemic has disrupted contracts between landlord and tenant, employer and employee, universities and students, to name a few, but has contract law provided a clear path to determine who must bear the risk of loss of such events? The purpose of this essay is to suggest that current contract law’s many and varied, sometimes even contradictory, rules and principles relevant to shaping a response to a health crisis can offer only limited guidance to courts and lawyers in the challenging cases. Further, contract law’s uncertainty in these cases reinforces the more general perspective that judicial decisions in contract cases (and more generally) often depend, not on doctrine, but on a pragmatic analyses of the facts, policies and equities. Although this taste of realism is not a revelation, in fact, there may be no better example of the limits of contract law, as administered by courts, than its response to contract disputes during a public health crisis. Part I of this essay inventories the plethora of contract law issues raised when a health crisis makes performance problematic and when no federal or state regulation is in place to resolve the dispute. Part II assesses what such circumstances reveal about the nature of contract law: First, contract law’s set of responses reinforce legal theorists who have long argued that, at least in hard cases, contract law is subjective and uncertain. Second, contract law’s main contribution in such cases is to identify the questions that should be asked and to provide a roadmap to follow. Part III, the Conclusion, offers a word about post-pandemic contract law.

In this chapter, I take up Dworkin’s account of law as integrity and explore some of its unrecognized implications regarding the gravitational force of judicial decisions. Under law as integrity, past judicial decisions have gravitational force over present ones for reasons of equality or procedural fairness. Judges have a duty to help ensure that their legal system treats like cases alike, which means that past decisions exert force over present ones even if those past decisions were defective as a matter of substantive justice. I argue that, because equality is not an exclusively past-oriented ideal but rather an a-temporal one, future judicial decisions also exert gravitational force over present ones. Whenever future decisions are reasonably foreseeable, then, judges ought to follow their best predictions of those decisions, just as they ought to follow their best understandings of past precedents. Accordingly, future exercises of governmental authority have normative implications for how officials should exercise their authority today that Dworkin did not appreciate. On the bidirectional model of precedent that I propose here, compared to the conventional, exclusively backward-looking one that Dworkin hung onto, a judge takes a more expansive view of the legal practices that are relevant to the process of constructive interpretation, interpreting not only past judicial decisions but also future ones. This is necessary from the point of view of law as integrity, I argue, because under that view the law must really constituted by both.

The present paper analyzes the role of intellectual property protection vis-a-vis the fashion industry. The Piracy Paradox coined by law professors Kal Raustiala and Christopher Sprigman in the United States has led to imitation becoming an inescapable reality for designers all around the world on the astonishing pretext that is “imitation sparks innovation.” Presenting a critique of the Paradox in the Indian scenario in Part 1 of the paper, the author stresses upon the need for securing proper laws to protect the heart of the fashion industry, that is original artistic expressions. In Part 2 of the paper, whilst examining judicial decisions in India, the author argues that the present laws are riddled with loopholes that have resulted in a proliferation of cheap knock-offs that not only hamper the creative process of a brand, but negatively impact its exclusive reputation as well as its revenue. The infamous idea presented by the Piracy Paradox coupled with a lacunae in the laws have cost not only big fashion brands and designers but also disrupted the emergence of businesses in the nascent stages. To conclude, solutions have been proposed to dismantle the notion propounded by the Piracy Paradox and strengthen the laws in place to ensure fair and just competition in the economy.

Judicial reasoning and rhetoric should be mutually reinforcing, but they often end up at odds. Edwards v. Vannoy offers an unusually rich opportunity to explore this tension. First, the watershed exception, though declared “moribund,” may actually have survived. Second, Justice Gorsuch’s ostensibly strict judgment-based approach arguably called for providing relief in Edwards. Third, majority coalitions have a counterintuitive incentive to overrule relatively insignificant precedents as often as possible. Fourth, Edwards featured charges of personal inconsistency that both reflect and facilitate the erosion of conventional legal argument. Finally, the legal system may benefit from the superficial and even fallacious reasoning often present in judicial decisions, including excellent ones. Other topics include Edwards’s use of remedial equilibration, its procedural irregularities, and its defensible if unfamiliar approach to stare decisis.

Background Prader-Willi Syndrome (PWS) is a complex multisystem genetic disorder associated with several challenges for people with PWS themselves, and for their families and care givers. Support around access to food is a particular issue due to impaired satiety and, because of this, people with PWS eat excessive amounts of food (hyperphagia). Together with other aspects of the PWS phenotype including, in many cases, a reduced sensitivity to pain, hyperphagia results in life-threatening obesity and life-shortening complications for some people with PWS. Restrictions to liberty and/or access to food raise important legal and ethical considerations in the clinical management of children and adults with PWS. Particularly where disagreements arise and, in the absence of comprehensive guidance for care providers, the courts may be called upon to resolve these difficult issues. Aims 1) To review case-law from English-speaking common law jurisdictions concerning support arrangements for people with PWS with a view to identifying issues that have required the intervention of the courts. 2) To identify principles on which to base clinical guidelines relating to the issues identified, ensuring that such guidelines are consistent with ethical and human rights imperatives. Methods Westlaw, Westlaw AU, and Lexis Nexis were searched for case law concerning the treatment or support of a person with PWS. Results Fifteen cases from jurisdictions in Australia, New Zealand, Canada, the United Kingdom and the United States of America met inclusion criteria. Areas requiring judicial decision making included a) detention in psychiatric hospital; b) support in least restrictive environments c) eligibility for support services; d) guardianship; e) access to special education. Judicial decisions are discussed in the context of the United Nations' Convention on the Rights of Persons with Disabilities.

Originalism has received a great deal of public attention, both in the media and political sphere. In the legal academic sphere, originalists portray originalism as the dominant form of constitutional interpretation, asserting that it brings constraint to judges and is consistent with democratic values. Despite this, originalists spend little effort explaining how originalism is to be implemented by practicing attorneys and judges, and even less effort responding to the obstacles of implementing originalism as a method of constitutional interpretation. This Article considers multiple originalist methods and finds that they are all lacking. Originalism as a method is too cumbersome or prone to abuse to provide the constraint and attention to democratic values that its supporters claim. Studying the constitutional record and immersion in founding-era texts require expertise in formal historic research methods, which most judges and attorneys lack. The recently developed method of corpus linguistics runs into similar obstacles as well, along with distinct problems including opaque coding methods and skewed source materials. Of the few originalists to contemplate these concerns, several suggest that while judges and attorneys may lack the time and resources necessary to engage in thorough investigations of original public meaning, those in academia may conduct the research upon which practitioners may rely. This purported solution fails. The sheer volume of potential outlets for originalist scholarship, coupled with the fact that most law review and journal editors are not professional historians, means that shoddy, goal-oriented scholarship is likely to be published. As a result, judges and attorneys may select from whatever scholarship supports their preferred outcomes. To the extent that judges and attorneys attempt to select for higher quality scholarship—say, by only citing to top authors or journals—this results in widening the gap between originalist interpretation and democratic values, as the original public meaning of the Constitution is determined only by what the most prominent law professors end up publishing in the most elite journals. Originalism is often touted by its supporters to be a way of finding objective answers to contentious constitutional questions. But if originalism is ever to be implemented with the rigor presumed by academic originalists, these originalists must confront the serious obstacles to implementing their methods that this Article raises. We conclude that originalists are unlikely to meet these objections, and that academic originalism and “originalism” as understood in political discussions and judicial opinions will remain disconnected. At the very least, we hope that this Article prompts originalists to devote greater efforts to addressing and attempting to overcome the problem of implementing originalism.

For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable claimants in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled. This Article proposes a novel solution: courts of appeals should hear class actions themselves. In so doing, courts high in the judicial hierarchy would continue to authoritatively decide important legal questions involving government institutions, while ensuring groups of similar, unrepresented parties finally get their day in court. While appellate class actions might sound like a strange procedural innovation, appellate courts already have power do this. Relying on the All Writs Act, appellate courts long ago created ad-hoc procedures modeled after class actions to respond to systemic government harm. This Article is the first to examine nascent experiments with appellate class actions. It shows that, contrary to popular belief, appellate courts can hear class actions and explains why they should do so. In cases challenging systemic abuse, this power has become vital not only to level the playing field between the government and the governed, but to protect courts’ core function in our separation of powers—to hear claims, interpret law, and grant meaningful relief. Without classwide judgments in such cases, courts risk ceding power to the executive branch to decide for itself when judicial decisions limit its own unlawful policies.

Portuguese Abstract: Dentro de um contexto de excesso de demandas, que atinge boa parte dos paises do globo, foram criados no Brasil mecanismos para fazer frente a essa situacao, dentre os quais se destacam a implementacao de reformas processuais para racionalizar o sistema judicial, a adocao de inovacoes tecnologicas, a busca por medidas de administracao e gestao do Poder Judiciario e a contratacao de juizes e assistentes judiciais. Todas essas medidas estao interligadas na busca pela eficiencia, entendida no sentido de busca por um melhor desempenho judicial, sendo necessario um aprofundamento do estudo sobre a relevante participacao, muitas vezes invisivel, de assistentes judiciais na mecânica do processo decisorio do judiciario brasileiro para, ao final, aferir se, de alguma forma, essa sistematica traz algum prejuizo a prestacao jurisdicional. Antes disso, necessario um aprofundamento sobre a decisao judicial, incluindo as teorias que tentam explicar esse fenomeno, a complexidade do ato de julgar e as diversas influencias que permeiam essa atividade do juiz, sejam de origem interna ou externa. Internamente, se destacam as individualidades de cada juiz, incluindo a sua personalidade, sua ideologia, as suas experiencias de vida e a sua vivencia profissional. Alem disso, estudos no campo das ciencias cognitivas indicam que os juizes, como qualquer outro ser humano, sao guiados por um sistema intuitivo que, embora seja muito eficiente, tambem pode levar a ilusoes cognitivas e erros no julgamento. Externamente, o ato de julgar tambem sofre influencias das mais diversas como a fome, a privacao do sono e a falta de glicose no sangue. Diante dessa complexidade, a participacao dos assistentes judiciais no processo decisorio se torna ainda mais problematica, pois esse profissional tambem esta sujeito a todas as influencias internas e externas que permeiam a atividade judicial. Nesse ponto, ha bases teoricas que sustentam essa relacao do juiz com o seu assessor, bem como o papel desempenhado pelos assistentes judiciais no processo decisorio, com criticas relacionadas a eventuais influencias e a falta de transparencia. Ao final, sera analisada a mecânica do processo de tomada de decisao no sistema judicial brasileiro, com enfase no grande numero de assessores por juiz, na existencia de uma carreira de apoio organizada e na ausencia de marcos legais aptos a regular a relacao entre o juiz e seus assistentes. English Abstract: Within a context of excessive demands, which affects a large part of the countries of the globe, mechanisms have been created in Brazil to deal with this situation, among which are highlight the implementation of procedural reforms to rationalize the judicial system, the Adoption of technological innovations, the search for administration and power management measures Judiciary and the hiring of judges and judicial assistants. All of these measures are interconnected in the search for efficiency, understood in the sense of the search for a better judicial performance, requiring further study on the relevant, often invisible, of judicial participation assistants in the mechanics of the process decision of the Brazilian judiciary to, in the end, assess whether, in some way, this systematic does some harm to the jurisdictional provision. Before that, a deepening is needed about the judicial decision, including the theories that try to explain this phenomenon, the complexity of the act of judging and the various influences that permeate this activity of the judge, whether of internal or external origin. Internally, they stand out as individualities of each judge, including his personality, his ideology, his life experiences and his professional experience. In addition, studies in the field of cognitive sciences indicate that Judges, like any other human being, are guided by an intuitive system that, although be very efficient, it can also lead to cognitive illusions and errors in judgment. Externally, the act of judging also suffers from the most diverse influences, such as hunger, sleep deprivation and lack of blood glucose. In view of this complexity, participation of judicial assistants in the decision-making process becomes even more problematic, as this professional is also subject to all internal and external influences that permeate the judicial activity. At this point, there are theoretical bases that support this relationship between the judge and his advisor, as well as the role of judicial assistants in the process decision-making, with criticisms related to possible influences and the lack of transparency.In the end, the mechanics of the decision-making process in the brazilian judicial system will be analyzed, with emphasis on the large number of advisors per judge, in the existence of a career of organized support and in the absence of legal frameworks suitable for the judge and his assistants.

The legal system in Macao runs in civil law mode like China Mainland and many other European countries, its important legal source is the statutes but the cases also play a very important role in Macao. The Uniform Judicial Opinions of some cases in Macao are the same as those in the Anglo-American legal system. After P.R.C government recovered the sovereignty of Macao, the system of law does not change a lot, even most statutes in the current civil codes remain the same as it was in the colonial period, but the Court of Final Appeal in Macau is a newly established judiciary department after the S.A.R government was made up. Authorized by the law, the Final Trial Court in Macao is the highest and the only court who can issue Uniform Judicial Opinion, many of the Uniform Judicial Opinions of the Court of Final Appeal are an explanation for the Code and play a complementary role. Even some Uniform Judicial Opinions can achieve the role of denying part of the statute.

A fallacy lies at the core of modern antitrust. The same scholars who successfully advanced a singular consumer-welfare goal simultaneously argued that output effects should be the exclusive criterion for analysis. This output–welfare framework entered mainstream discourse, was endorsed by enforcers and judges, and played a pivotal role in the Supreme Court’s recent Ohio v. American Express opinion. Yet despite its centrality, outputism has largely escaped notice. When exposed to systematic evaluation, the previously assumed link between output and welfare breaks down. A wide variety of conduct can push output and welfare in opposite directions. Moreover, purely outputist analysis is often unworkable in markets—for labor, social networking, online search, and more—that are of particular interest to contemporary antitrust. Recognizing the Output–Welfare Fallacy offers substantial payoffs. It illuminates and undercuts a fundamental illogic that motivates outputist judicial decisions, which warrant swift reversal. Market power can be defined as the power to control competition, rather than power to profitably reduce output. Plaintiffs need not demonstrate an output reduction to carry their initial burden of proof. Conversely, defendants need not prove that output increased in order to make out a valid procompetitive justification. In general, moving beyond the narrow confines of output-based analysis enables the application of a more coherent, practical, and efficient antitrust framework.

The digitalisation and automation of the judiciary, also known as judicial informatisation, (司法信息化) has been ongoing for two decades in China. The latest development is the emergence of “smart courts” (智慧法院), which are part of the Chinese party-state’s efforts to reform and modernise its governance capacity. These are legal courts where the judicial process is fully conducted digitally, and judicial officers make use of technological applications sustained by algorithms and big-data analytics. The end-goal is to create a judicial decision-making process that is fully conducted in an online judicial ecosystem where the majority of tasks are automated and opportunities for human discretion or interference are minimal. This article asks how the automation and digitalisation of judicial processes might influence judicial discretion and procedural flexibility? To answer this question, this article uses a dataset of primary documentary sources, namely the 2020 Annual Report on Informatisation of Courts, which contains numerous case-studies of automation and digitalisation initiatives by different courts undertaken as part of the ‘building smart courts’ policy. This is supplemented with judicial opinions and other official documents, secondary, and grey literature. The article argues that automation and digitalisation play a significant role in the centralisation of judicial power and increasing control and supervision over China’s courts. It aims to make courts more efficient and effective governance institutions by making judges more procedurally compliant and increasing the supervision over their work. In this sense, courts’ widespread embrace of artificial intelligence and machine learning technologies is part of a broader movement in the PRC towards algorithmic governance, permeated by a firm belief in the power of technology and distrust of human discretion.

Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) (en banc), purports to find that the right to bear arms is outside the historical scope of the Second Amendment, which protects that very right to bear arms. The actual text of the Second Amendment is AWOL in the Ninth Circuit’s holding that Hawaii may ban the carrying of firearms, whether openly or concealed. The court’s lengthy account of the history of prohibition on bearing arms is a faux histoire. Young begins by tracing Hawaii’s ban on carrying a pistol to 1852, when Hawaii was a monarchy. Hawaii’s Constitution recognized no right to bear arms, and instead the law declared that only persons in government were “authorized to bear arms.” When the monarchy was overthrown and a republic created, a law was enacted allowing anyone to carry a pistol by paying a license fee. The court simply ignores that period and highlights restrictions imposed after annexation by the United States. And it disregards how the “good cause” exemption, which allowed carrying without a license, was enforced. Next Young finds precedent for the carry ban in the decrees of medieval English kings, who prohibited subjects from “going armed.” However, the context concerned knights in armor fighting and creating turmoil, not lowly peasants carrying a bow or dagger for self-defense. At any rate, our Founders would have held in disdain the idea that they needed “the king’s license” to bear arms. The court also misrepresents various English statutes, such as the prohibition on going armed to rob, murder, and kidnap, terms that the court snips out to claim that the law simply banned the carrying of concealed weapons. The Statute of Northampton of 1328, with its convoluted language on coming armed before the King’s Justices or going or riding armed, is held up by Young as the holy grail to justify carry bans. But the court butchers the definitive holding in Rex v. Sir John Knight (1686), reflected in treaties thereafter, that the Statute only applied if a person went armed with evil intent in a manner to terrorize the subjects. And it underrates the scope of the Declaration of Rights of 1689, protecting the right of Protestants to “have Arms for their Defence.” Young’s “history” goes further downhill when it crosses the Atlantic. Carry bans in the American colonies were somehow seen as normal because the backwater East New Jersey had a temporary carry restriction and the other colonies required settlers to carry arms to church and other public places. The court skips over the history of the British attempts to disarm the Americans, the demands that the proposed Constitution have a bill of rights, and public discussion leading to the ratification of the Second Amendment. Instead, the court jumps to antebellum laws that prohibited going armed offensively to the terror of the people, which were irrelevant to the peaceable carrying of arms. It muddies the waters about nineteenth-century judicial decisions, which generally upheld the right to bear arms except for an outlier Texas case from 1871. The antebellum slave codes and judicial decisions upholding them, based on the premise that slaves and even free persons of color had no right to bear arms because they were not citizens, warrants no notice in Young. And it is silent on the purpose of the Fourteenth Amendment to overturn black code provisions requiring African Americans to obtain a carry license that could be issued or denied in the discretion of the government. The Ninth Circuit in Young paints a faux histoire of the right to bear arms. It relies on medieval decrees that would have been anathema to the Founders, deletes key passage from historical sources, leaps over crucial stages of American history such as the coming of the Revolution and of Reconstruction, and otherwise distorts the past to demonstrate that the right to bear arms is actually beyond the historical scope of the right to bear arms.

The Church of Scientology is one of the most discussed religions of the modern era, and its beliefs and practices have been shrouded in controversy since its emergence in the 1950’s. Shortly thereafter, the Internal Revenue Service recognized Scientology as a valid religious organization, thus granting certain governmental protections and benefits afforded to religious organizations in this country, including tax exemption. After a decades-long battle between the Church and the IRS, the IRS eventually granted a blanket tax exemption to all Scientology organizations under Section 501(c)(3) of the Internal Revenue Code. However, the Church’s current practices and activities raise significant concerns that warrant a reexamination of its tax exemption eligibility. The Church engages in activities that are substantially commercial by requiring payment from Scientologists to practice the religion and improve their spiritual standing. Additionally, the Church violates the fundamental national public policy that freedom of speech should not be suppressed simply because two parties disagree, a foundation of our nation that is trounced by Scientology’s Fair Game policy. Further, the Church facilitates private inurement of top executives and influential celebrity members by expending excessive funds for their personal benefit. For these reasons, the IRS should reevaluate the tax exemption status of each individual Scientology organization, or risk undermining judicial decisions and creating the dangerous precedent that persistent attacks on governmental agencies will in turn lead to leniency and submission. Should the IRS investigate and determine that all Scientology organizations comply with the requirements of Section 501(c)(3), then retention of their tax exemption status would be completely warranted; however, to permit such activities to continue without question would undoubtedly defeat the principles behind tax exemption and raise legitimate concerns regarding the fairness of IRS decisions.

Public school board meeting prayer cases are intensely divisive and difficult. The federal circuit courts have struggled mightily with these Establishment Clause cases, and this struggle has resulted in a circuit split regarding these prayers’ constitutionality. At the core of this unresolved split is whether these cases are governed by the Supreme Court’s seventy-five-year school prayer jurisprudence or by its narrow Marsh-Town of Greece legislative prayer exception. This Article analyzes how these divergent decisions and the continued crafting of invocation policies by public school boards in the vacuum of direct Supreme Court guidance exemplify the complex constitutional issues that arise in all school law First Amendment cases. It then argues that public school board meeting prayers are a violation of the Establishment Clause because they are coercive, polarizing prayers that run contrary to the core of this religion clause of the First Amendment. They cannot be cured as constitutional violations by claiming that they are subject to the legislative prayer exception, by asserting that they are private student speech, by requiring students to absent themselves during their delivery, or by arguing that they are de minimis encroachments. Consequently, these prayers require invalidation as they infringe upon the conscientious liberties of the schoolchildren who are most impacted by this state-sponsored religious speech; they allow the state to transverse the boundaries of religious sanctity; and they give rise to majoritarian governmental orthodoxy. These are Establishment Clause violations, and principled judicial decision making from all federal courts, including the Supreme Court, is needed to end these significant constitutional abuses.

This research focuses on complex questions of law relating to family disputes furthermore specifically the complex problem of custody of children, which nowadays have increased due to the transnational migration and transnational families . Such disputes raise a large range of questions of laws in different jurisdictions having different criteria's and interpretations which results in prolonged custody disputes which may lead to child abduction. The paper further looks into the foremost convention on the said subject being The Hague Convention on The Civil Aspects of International Child Abduction and the paper emphasizes on the jurisdictional related questions and their enforcement. In the next part of the paper, we look into the principles propounded by the Indian judiciary, the present laws and the legislative steps taken to tackle the problem.

The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to manage emergencies and contribute to govern crisis management. Although the analysis shows that differences exist across countries, depending on institutional varieties and political contexts, the experience of COVID-19 has shown that, even in times of emergency, courts can adapt, and provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, with different intensity across countries, to ensure that governments took the necessary measures to contrast the pandemic, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and along the multiple phases of the health crisis. Differences in the balancing have emerged compared to ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision making, and new balances between precaution and evidence-based approaches. The role of scientific evidence in political and administrative decision-making has been at the core of judicial review aimed at ensuring transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants, partly associated with the different national legal traditions, have been used to scrutinise the legality of restrictive governmental measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation.

This essay explores the differences between legal pragmatism and formalism as working forms of legal thought. After a short overview of pragmatism and a discussion of Louis Brandeis as an exemplar, it turns to the evolving caselaw regarding presidential removal. This issue has led to notable faceoffs between formalists and pragmatist, from Taft v. Holmes and Brandeis, to Roberts and Thomas v. Kagan. Because of their preference for bright-line rules, formalists have tended to oversimplify Founding era history and post-Founding practice. Pragmatist judges have provided more nuanced historical accounts and have tried to come to grips with the tradeoffs involved in issues of institutional design. The choice between these styles of thought is not inherently tied to differences in ideology or substantive constitutional views. Legal pragmatism has the potential, however, to connect judicial decisions to issues that are meaningful to the public, to provide more transparency into the reasons that motivate decisions, and to promote better dialogue among judges.

The presumption of regularity is an imprecise quasi-deference principle that federal courts apply in varying ways to presume federal officers and employees lawfully and consistently discharge their official duties. The presumption gained national significance during the Trump Administration in several key cases in which it was implicated, but never described by the Supreme Court. While the literature and judicial opinions have invoked the presumption, there has been sparse scholarly accounting for its contours, value, and legitimacy. This Article is the first to trace the contemporary domain of the presumption and its applications from its pre-Founding Era source and normatively-recognized 1926 bedrock case. It finds that due to the indeterminacy of the Supreme Court to squarely articulate the presumption and its limiting principles, courts have applied it in at least 14 distinct scenarios that each carry a unique definition. It argues that the presumption of regularity is inaccurately conflated with the presumption of good faith and that several aspects of its modern uses violate separation of powers principles and the Administrative Procedure Act of 1946. This Article makes the case that the Supreme Court or Congress should articulate a lawful, historically supported, and sensible doctrinal standard for the presumption of regularity to benefit each of the branches of the federal government and the American public.

The article illustrates the fundamental aspects of international legal personality of International organizations (IOs) under international law. The work studies the concept and emergence of the international legal personality; analyzes theoretical approaches and impacts of court decisions regarding the legal personality.

This paper reviews a set of 230 judicial decisions collected by the author which Japanese courts rendered in disputes over claims of corporate directors to their pay between 1953 and 2018 in order to investigate what role litigation in the courts has played in relation to Japan's executive compensation practices. These all centered around either Article 361 of the Companies Act or its predecessor Article 269 of the Commercial Code, the main rule governing director compensation. The paper makes four findings which shed light on this question. The first insight is that Japanese courts, and particularly the Tokyo District Court, deal with director compensation disputes quite frequently. This has particularly been the case since the turn of the century, with decisions appearing at a rate of roughly ten per year since 2000. The second insight is that the nature of these litigated disputes differs drastically from the shareholder derivative action narrative developed in the American literature. Article 361 could be loosely described as a type of “Say on Pay” rule, which requires the pay of the board of directors be set either in the articles of incorporation or by a resolution of the shareholders meeting. This procedural requirement has lent itself to a fairly diverse set of uses in the Courts. Broadly speaking these fall into one of two categories. On the one hand, in keeping with its purpose, the rule has been used by both shareholders and corporations themselves to challenge director entitlements to pay. On the opposite side it has been used with even greater frequency in lawsuits initiated by directors claiming remuneration from corporations. A third insight which follows from the second is that in Japan with respect to director pay litigation in the Courts could more accurately be described as a mechanism for directors rather than shareholders. The vast majority of cases which this study uncovered are in fact lawsuits initiated by directors seeking to enforce claims for remuneration against the corporation, with shareholder lawsuits being far less common. The reason for this lies primarily in the fourth and final insight, which is the important role the courts have played in developing the rule itself. Taking a provision that consisted of a single line which left an enormous number of issued unanswered the Courts developed a fairly extensive set of rules governing how it, and by extension how decisions on director pay, operated. In particular the cumulative effect of these has been to give boards of directors, and particularly the representative directors who exercise control over them, a great deal of independent power to set the pay of individual directors. This in turn has put the pay of individual directors, and particularly those who run afoul of the representative directors, at some risk which has led many to turn to the courts to try to enforce their claims.

We compare decisions by female and male judges in child support trials where a judge decides on the father's income allocation to children. We investigate two types of cases: 1) when fathers have a formal job, their income is known to judges, and awards are set as a fraction of it, and 2) when fathers work in the informal sector, their income is unknown to judges, and awards are given as a fixed amount of money. By exploiting random assignment of cases to judges, we find that female judges set lower awards in both cases in comparison to male judges. However, the gender gap under incomplete information is around two thirds the size of that under complete information. In exploring mechanisms underlying this difference, we propose a simple framework to elicit judges' beliefs about the unknown income in such cases by using their judicial behaviour in cases where income is known. We find that female judges estimate that the unknown income is higher, but still award lower amounts of child support than male judges do. Thus, gender differences act as a countervailing force and explain the attenuation of judges' gender differences in decisions under incomplete information.

Right to free speech is a constitutional right. Every human being can exercise this right recognized by many international instruments. But sometimes, it is seen that free speech is curtailed in the name of defamation and constitutional reasonable restrictions in Bangladesh. It cannot be run in a democratic country. In democracy, the criticism against government and its policies is also a right under free speech. The aim of this dissertation shows how a balance between them is drawn and examines the legality of such laws which make a conflict with freedom of speech. This dissertation is framed following the qualitative and quantitative method. The essential data are compiled from online journals, online newspaper articles, websites and blogs, books, editorials, judicial decisions, national statutes, international instruments etc. The findings of the manuscript are that free speech is open for all in democracy. It is protected by constitution. It should not be repressed by laws. Similarly, right to reputation must also be protected. Because it covers right to life. Without reputation, life is worthless. So, it should not be harmed in the name of free speech. A balance must be drawn between them.

This essay is an invited response to “Advisory Opinions and the Problem of Legal Authority,” Vanderbilt Law Review, vol. 74, by Christian R. Burset. The essay explores the relationship between English legal education in the 18th century and the crisis affecting the common law. English legal education lacked a formal institutional basis after the decline of the Inns of Court, and this affected the acculturation of English lawyers and their maintenance of a shared sensibility or "common erudition." The evidence suggests that American legal education faced similar challenges. As a result, lawyers and legal writers embraced a view of the law that emphasized elements that narrowed the discretion of judges: precedent and a doctrine of stare decisis; the law as a system; lengthy, written judicial opinions; and legal decision-making as deductive. The development of a doctrine of justiciability and the decline of advisory opinions was related to these developments.

When questions have been raised about targeted killing—that is, about our practice of hunting down and killing terrorist suspects identified by name— defenders of the practice often bring up the case of the 1943 killing of Japanese Admiral Yamamoto, the architect of the attack on Pearl Harbor, and they cite it as a “precedent.” Now the first meaning given to the word “precedent” in the Oxford English Dictionary is “a previous instance taken as an example or rule by which to be guided in similar cases or circumstances; an example by which a comparable subsequent act may be justified.” Can this apply to the Yamamoto killing? In what way can a single instance like this from almost 80 years ago contribute anything to the permissibility of a highly controversial practice today? If the Yamamoto attack is a precedent, it is a non-judicial precedent and its invocation invites us to consider how precedent operates outside the framework of judicial decision. Beyond that, we must also ask what kind of justificatory work a single instance can do in normative argument? Does it justify by being a shining example of the rightfulness of actions of this sort? Or does it justify by beginning a line of analogical conduct that increases in its justifiability the longer it goes on?

How does gender affect judicial decisions? Whether and to what extent judges have preferential treatment to plaintiffs of the same gender? In this paper, we provide novel evidence of gender in-group bias in judicial decisions. We use a naturally occurring dataset of online transcripts of judicial decisions and exploit effectively random assignment of cases to judges. The analysis provides evidence in support of gender bias: a claim with a male plaintiff is 3.6\% more likely to be accepted if it is assigned to a male judge, as opposed to a female judge. The bias is slightly larger in regions with initially more biased gender attitudes. Judges' working experience or workload does not affect the magnitude of bias. We provide evidence in support of in-group gender bias explanation and rule out the possibility that the results are driven by differences in the information available to the judge or differences in plaintiffs' behaviors. These findings raise policy concerns about the fairness of trials in courts with a small proportion of female judges.

Like Congress and other deliberative bodies, the Supreme Court decides its cases by majority vote. If at least five out of the nine justices come to an agreement, their view prevails. But why is that the case? Majority voting for the Court is not spelled out in the Constitution, a federal statute, or Supreme Court rules. Nor it is obvious that the Court should decide by a majority vote. When political decisions are made, it makes sense to follow the majority. The general will of the public ought to govern. But judicial decisions are not supposed to reflect popular sentiment. Rather, they must respect the rule of law. Thus, on many matters, courts override the preferences of the majority to protect the rights of the minority. Moreover, juries in the United States decide their cases unanimously. As the Supreme Court has recognized, it is important for jury decisions to emerge from a deliberative process that represents the views of the entire community. For the same reasons why it is important for juries to decide cases unanimously, so is it important for the Supreme Court, as well as other appellate courts, to decide cases unanimously. In particular, unanimous decisions would be better decisions, and they would be fairer decisions. They would be better because they would take into account a broader range of relevant perspectives, and they would be fairer because they would reflect the views of both sides of the ideological spectrum. Deciding cases by consensus would not be new for the Supreme Court. For most of its history, it operated under a norm of consensus, with dissenting opinions being written infrequently. This article will make several points, which have gone almost entirely unrecognized to date: (1) Majority voting does not make sense on an appellate court, (2) majority voting on an appellate court violates principles of due process, and (3) unanimous decisions promote the quality and fairness of judicial decision-making by ensuring that decisions reflect a broad range of perspectives. In addition, (4) unanimous decision making reflects the original intent of the Framers, (5) it is consistent with Supreme Court precedent, and (6) the experience of the Supreme Court, juries, and other decision-making bodies indicates that a rule of unanimity can work well.

In teaching contract law, there is value in emphasizing a few “leading cases.” The majority of judicial opinions filling Contracts casebooks present variations on their central themes. Leading cases also attract scholarly scrutiny. Sometimes it sullies the reputation of one or more of the parties. Three Contracts classics illustrate the point. All three involve parties named “Lucy” (or its derivation, “Lucille”). The cases govern some of contract law’s most important concepts, involving formation, consideration, and remedies. Research into the Lucy Cases has uncovered backstories of duplicity, villainy, and incompetence. Lucy v. Zehmer is key to understanding the manifestation element of contract formation, yet Lucy has been revealed to be a flim-flamer. Lucy Duff-Gordon’s infamy does not detract from the value of Wood v. Lucy, Lady Duff-Gordon when teaching the evolution of consideration. A critique of Willie and Lucille’s hapless lawyer in Peevyhouse v. Garland Coal can be used to instruct upon a wide range of contract remedies. Flawed as the participants may be, the cases endure. Bad characters can offer good lessons.

The psychological research of judicial behaviour and decision-making has evolved markedly over the last few decades. While we are still far from developing a full empirical account of what is happening ‘inside the judicial mind’ (Guthrie, Rachlinski & Wistrich, 2001), substantial progress has been made as studies have gradually expanded in scope and methodology. In particular, an increasing number of studies strive to better capture the unique conditions that are relevant to judicial behaviour. For instance, researchers have moved to conduct laboratory experiments with expert subject pools, including judges and legal professionals (for an overview see, e.g., Rachlinski & Wistrich, 2017), more realistic settings (Spamann & Klohn, 2016), and more sophisticated methods, looking not only at the final outcome reached but also at elements of the decision-making process, such as the order at which judges approach various documents and how much time they devote to reading them (Liu, Klohn & Spamann, 2019). Researchers have also deployed the random assignment of cases to judges in order to isolate causal psychological mechanisms in real-world judicial decisions—documenting how differences in case attributes can lead to context-dependent decisions in criminal (Leibovitch, 2016) and asylum cases (Chen, Moskowitz & Shue, 2016), and how judicial decisions may change in response to emotional shocks (Eren & Mocan, 2018). Alongside growing methodological sophistication, scholars have also started to make headway on the manifold ways in which the psychology of judicial decision-making may be intertwined with wider institutional design aspects (Leibovitch, 2016, 2017; Schaur & Spellman, 2017). This new paradigm highlights the ways in which cognitive biases and heuristics can lead not only to transient effects on decisions but can also affect judgements in more systematic and prolonged ways. At its roots is the understanding that the expertise and repeat experience that characterize judges can lead to the creation of schemas and baselines which judges employ when making decisions in individual cases. The institutional capacity of the courts and the applicable rules of procedure and evidence can foster different decision-making environments, thereby changing the schemas created and nudging judicial decisions in a particular direction. In ‘The Psychology of the Trial Judge’, Judge Hoffman emphasizes how judicial decision-making, like human decision-making in general, is susceptible to various cognitive biases. This commentary complements that discussion by extending from the individual trial judge to the characteristics of the court in which she operates, and reviews the connection between institutional design and the psychology of judging through three prominent examples. The first section discusses how because of context-dependent decision-making, the assignment of jurisdiction and types of cases across courts can change the substantive outcomes reached by the courts. The second section draws attention to the tension between the human tendency to retributivism and the rehabilitative goals set by problem-solving or treatment-oriented courts, and how this tendency may be responsible for some of the unintended consequences of specialized courts. The third section reviews the accumulating findings regarding the difficulty of disregarding irrelevant or inadmissible evidence, and discusses how these could inform the applicable rules of evidence governing trials. As this is a developing field of research, throughout the discussion I also highlight some of the limitations of existing evidence and offer new avenues for future research on these topics.

Clinical genetics laboratories are handling more patient information than ever before, including genetic data that has no established clinical significance. Those labs could face legal liability if that previously uncertain information gains clinical significance and a laboratory fails to notify the impacted patients. Should patients choose to sue clinical genetics labs, what body of law will govern: medical malpractice or ordinary negligence? We conducted a fifty-state survey assessing whether clinical laboratories are “health care providers” for the purposes of medical malpractice to answer this question. We found that six states expressly include laboratories or laboratory personnel in their statutory definition of health care provider, fifteen states have judicial opinions that treat laboratories as health care providers, and four states have caselaw concluding that laboratories are not health care providers. Thus, twenty-five states have yet to decide this important threshold matter. We therefore conclude that the legislatures in these states should provide clarity regarding the potential medical malpractice liability of clinical genetics laboratories.

The promise (or threat) of so-called Robot Judges has captured the attention of popular media and legal scholarship. But little has been said about the details. How would automated judging actually work? Specifically, how does one translate big data and probabilistic predictions into judgments? Exploring the effect of using litigation assessment algorithms in judicial decision making, this article models one form of automated judging. We show that the use of algorithms to assist or automate judicial decision making can distort litigation and settlement outcomes. The particulars of distortion depend on the methods that judges use to translate predictions into judgments. Each method available is accompanied by different costs and different trade offs.

John Noonan’s jurisprudence, it has been written, depends upon the formation of an "empathic bond between judge and litigant." This paper is intended as an exploration of how Noonan’s jurisprudence functions in practice. Over the course of three decades on the Ninth Circuit Court of Appeal, Judge Noonan established himself as one of America’s most original, insightful, and genuinely empathetic judges. While hundreds of his judicial opinions might have been chosen for this investigation, I have selected only a single one. The case to be examined is Wagner v. County of Maricopa, involving a wrongful death action and civil rights claims brought against the County and its Sheriff, Joe Arpaio.

Over the past two decades, important new rules regulating the conduct of armed conflict have emerged from domestic judicial decisions in several states, including the United States. Courts produced decisions about how to characterize a state’s extra-territorial armed conflicts against non-state actors; who a state lawfully may detain or target during those conflicts; the detention review processes a state must conduct; and what restrictions should attach to detainee transfers. We might term this case law “domestic humanitarian law” (or “DHL”). DHL offered a way to develop international humanitarian law in the absence of new international negotiations. U.S. courts were a major player in this undertaking. The decisions they produced, and the congressional and executive reactions to those decisions, fall squarely within what we think of as U.S. foreign relations law. Notwithstanding the stated interest by the Restatement (Fourth) of Foreign Relations Law’s reporters in updating the Restatement (Third) to better reflect major geopolitical changes since 1987, however, and notwithstanding the fact that DHL is a new, plentiful, and important reflection of those changes, there seems to be an unspoken consensus that DHL would be a poor subject for the Restatement (Fourth) to take up. This chapter considers why this is the case and what it says about U.S. “war on terror” jurisprudence. The chapter first describes basic developments in U.S. “DHL” since the September 11 attacks and shows why this jurisprudence theoretically would fit squarely into a Restatement (Fourth). It then explores why there is no enthusiasm for including the topic in a future Restatement, even from groups whom we might expect to support such an idea. It focuses on academics who support broad executive power, academics who emphasize the importance of U.S. compliance with international law, and officials in the executive branch, including lawyers in the State, Defense, and Justice Departments. Substantively, it surveys why each group may have unique reasons to resist the inclusion of DHL in a Restatement, and why all three groups may share general, strategic reasons to resist. It concludes that this pessimism reflects dissatisfaction from virtually all quarters about the state of U.S. law in this area, even from those actors who ostensibly “won” their cases.

Appeals to dignity are a staple of political and legal discourse in the United States, as they are in other countries. Dignity is invoked frequently in judicial decisions in the United States, including in numerous opinions of the United States Supreme Court. References to dignity by Justices of the Supreme Court are both interesting and, for some, puzzling, because there is no mention of dignity in the Federal Constitution at all. In modern times perhaps no Justice has invoked dignity more frequently and more substantively than Justice Anthony Kennedy. Kennedy is said to have “penciled in” dignity as a constitutional value. This article will assert and defend the thesis that what Kennedy “penciled in” is a constitutional norm of dignity as integrity. In Kennedy’s constitutional jurisprudence, the concept of dignity is enlisted to defend and affirm the integrity of a person, from the most basic (physical integrity) to the most reflective (social integrity) aspects of personhood. Kennedy views humiliation as the extension of cruelty from the physical to the psychological realm of suffering. Dignity is meant to guard against cruelty in all of its dimensions. Viewed this way, dignity is an existential value, invoked to defend the threshold conditions (privileges and immunities) that are necessary for a person to exist as an integral whole. The article develops and defends its thesis through a systematic and detailed examination of all of Justice Kennedy’s opinions which invoke dignity, both on the Supreme Court and on the Ninth Circuit where he served before his elevation to the Supreme Court. The article will also examine his speeches and testimonies to the extent that they shed light on his understanding of what dignity entails. The article shall occasionally refer to opinions of other Justices of the Supreme Court, such as Justice Brennan, and those of constitutional courts of other countries, such as the German Constitutional Court, for purposes of clarifying Justice Kennedy’s view of dignity and the norm of dignity as integrity.

Judicial review decisions of refugee determinations are among the most important decisions that the Federal Circuit Court of Australia (FCCA) is asked to make. If errors in the exercise of executive power are not caught and corrected through judicial review, refugees may be sent back to countries where they may face torture, persecution or death. Refugee applicants, should therefore, rightly expect that the outcomes of their judicial review applications hinge on the strength and merits of their case and not hang in balance of which judge is assigned. This paper using a quantitative methodology presents data on the patterns of judicial decision making of the FCCA.

This chapter addresses the engagement of U.S. courts with international law. It applies the analytic framework developed by the International Law Association Study Group and examines cases in which courts have engaged in various forms of avoidance, alignment, and contestation. U.S. courts routinely practice fair weather alignment and con-substantial alignment to harmonize domestic law with international law. In the past decade alone, U.S. courts have decided hundreds of cases involving fair weather alignment and thousands of cases involving con-substantial alignment. In contrast, cases involving overriding alignment or hyper-alignment are quite rare. In the decade after the Supreme Court decision in Breard v. Greene, cases implicating the Vienna Convention on Consular Relations (VCCR) yielded dozens, perhaps hundreds, of judicial decisions involving either affirmative or negatory contestation. Setting aside VCCR cases, though, judicial decisions involving affirmative or negatory contestation are relatively rare. Since Congress enacted the terrorism exception to the FSIA in 1996, federal courts have decided dozens of cases implicating the terrorism exception, many of which involve con-substantial contestation. Similarly, since enactment of the Torture Victim Protection Act (TVPA) in 1992, federal courts have decided a few hundred cases under that statute. Insofar as the TVPA imposes civil liability for torture committed by foreign government officials who might be entitled to immunity under international law, some of those cases also involve con-substantial contestation. Aside from these examples, though, decisions involving con-substantial contestation seldom arise. U.S. courts routinely engage in evasive avoidance by deciding cases without reference to international law, even though international law could potentially apply. In many cases, courts engage in evasive avoidance because the parties do not raise relevant international law arguments. When the parties do not invoke international law, courts are unlikely to do so on their own initiative. The failure of parties to present international law arguments is partially attributable to the fact that many U.S. lawyers are not familiar with international law. However, to some extent, evasive avoidance may also be a product of tactical decisions by litigants. In cases where international human rights norms are potentially applicable, human rights claimants may have a better chance of winning by focusing on domestic law arguments to the exclusion of international law arguments. US courts sometimes invoke non-self-execution (NSE) doctrine to justify a posture of affirmative avoidance. A prior empirical study, based on judicial decisions between 1970 and 2006, estimated that U.S. courts decided almost ninety percent of treaty cases without even mentioning NSE doctrine. Courts specifically held that treaties were non-self-executing in only about five or six percent of treaty cases. It is possible that lower courts have been applying NSE doctrine to support affirmative avoidance with greater frequency since the Supreme Court’s 2008 decision in Medellin v. Texas. However, available scholarly analysis is inconclusive in this respect. Aside from judicial decisions involving NSE doctrine, cases where courts practice affirmative avoidance are relatively rare.