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The Algorithm Game, Jane Bambauer, Tal Zarsky 2018 University of Arizona James E. Rogers College of Law

The Algorithm Game, Jane Bambauer, Tal Zarsky

Notre Dame Law Review

Most of the discourse on algorithmic decisionmaking, whether it comes in the form of praise or warning, assumes that algorithms apply to a static world. But automated decisionmaking is a dynamic process. Algorithms attempt to estimate some difficult-to-measure quality about a subject using proxies, and the subjects in turn change their behavior in order to game the system and get a better treatment for themselves (or, in some cases, to protest the system.) These behavioral changes can then prompt the algorithm to make corrections. The moves and countermoves create a dance that has great import to the fairness and efficiency ...


If The Text Is Clear—Lexical Ordering In Statutory Interpretation, Adam M. Samaha 2018 New York University School of Law

If The Text Is Clear—Lexical Ordering In Statutory Interpretation, Adam M. Samaha

Notre Dame Law Review

Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed, we should pause to reconsider whether these instructions are justified and whether ...


Study Group On Immigrant Representation: The First Decade, Robert A. Katzmann 2018 Chief Judge, U.S. Court of Appeals for the Second Circuit

Study Group On Immigrant Representation: The First Decade, Robert A. Katzmann

Fordham Law Review

All of us here have a common goal: ensuring adequate legal representation of the immigrant poor. A courtroom has multiple players with different roles, but all would agree that adequate legal representation of the parties is essential to the fair and effective administration of justice. Deficient representation frustrates the work of courts and ill serves litigants. All too often, and throughout the country, courts that address immigration matters must contend with such a breakdown in legal representation, a crisis of massive proportions with severe, tragic costs to immigrants and their families. For our nation’s immigrants, the urgent need for ...


Universal Representation, Lindsay Nash 2018 Benjamin N. Cardozo School of Law

Universal Representation, Lindsay Nash

Fordham Law Review

In an era in which there is little good news for immigrant communities and even holding the line has become an ambitious goal, one progressive project has continued to gain steam: the movement to provide universal representation for noncitizens in removal proceedings. This effort, initially born out of a pilot project in New York City, has generated a host of replication projects throughout the nation and holds the promise of even broader expansion. But as it grows, this effort must confront challenges from within: the sort-of supporters who want to limit this representation system’s coverage in a number of ...


Arguing With Friends, William Baude, Ryan D. Doerfler 2018 University of Chicago Law School

Arguing With Friends, William Baude, Ryan D. Doerfler

Michigan Law Review

Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases.

Both positions are wrong. Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue for a different approach: A judge ought to give significant weight to the ...


The Way Pavers: Eleven Supreme Court-Worthy Women, Meg Penrose 2018 Texas A&M University School of Law

The Way Pavers: Eleven Supreme Court-Worthy Women, Meg Penrose

Meg Penrose

Four women have served as Associate Justices on the United States Supreme Court. Since the Court’s inception in 1789, 162 individuals have been nominated to serve as Supreme Court Justices. Five nominees, or roughly 3 percent, have been women. To help put this gender dearth in perspective, more men named “Samuel” have served as Supreme Court Justices than women. Thirteen U.S. Presidents have nominated more people to the Supreme Court than the total number of women that have served on the Court. Finally, there are currently more Catholics serving on the Supreme Court than the number of women ...


Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema 2018 Northwestern Pritzker School of Law

Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema

Boston College Law Review

This Article asks whether observable conflicts between Supreme Court justices—interruptions between the justices during oral arguments—can predict breakdowns in voting outcomes that occur months later. To answer this question, we built a unique dataset based on the transcripts of Supreme Court oral arguments and justice votes in cases from 1960 to 2015. We find that on average a judicial pair is seven percent less likely to vote together in a case for each interruption that occurs between them in the oral argument for that case. While a conflict between the justices that leads to both interruptions and a ...


Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry 2018 Selected Works

Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry

Suzanna Sherry

This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of ...


All Or Nothing: Explaining The Size Of Supreme Court Majorities, Paul H. Edelman, Suzanna Sherry 2018 Selected Works

All Or Nothing: Explaining The Size Of Supreme Court Majorities, Paul H. Edelman, Suzanna Sherry

Suzanna Sherry

In this Article, Professors Edelman and Sherry use a probabilistic model to explore the process of coalition formation on the United States Supreme Court. They identify coalition formation as a Markov process with absorbing states and examine voting patterns from twelve Court Terms. On the basis of their data, they conclude that Justices are reluctant to remain in small minorities. Surprisingly, however, they also find that a three-Justice minority coalition is less likely to suffer defections than a four-Justice minority coalition. This counterintuitive result suggests that while in general it is minority Justices rather than majority Justices who drive the ...


Can Judges Be Uncivilly Obedient?, Brannon P. Denning 2018 College of William & Mary Law School

Can Judges Be Uncivilly Obedient?, Brannon P. Denning

William & Mary Law Review

In a recent article, Jessica Bulman-Pozen and David Pozen identified “uncivil obedience” as a tactic for protesting laws or regulations, not by violating the law, as with civil disobedience, but rather by scrupulous attendance to it. They noted that it is a tactic available to private and public actors alike, but were doubtful that a judicial variety existed. They were skeptical because, in their opinion, even hyper-formalist legal opinions would be unlikely to be perceived as provocative as scrupulous adherence to the letter of the law might be when practiced by non-judicial actors. In this Article, I argue that judicial ...


"Beauty Is Truth And Truth Beauty": How Intuitive Insights Shape Legal Reasoning And The Rule Of Law, Stephen M. Maurer 2018 Seattle University School of Law

"Beauty Is Truth And Truth Beauty": How Intuitive Insights Shape Legal Reasoning And The Rule Of Law, Stephen M. Maurer

Seattle University Law Review

Scientists have long recognized two distinct forms of human thought. “Type 1” reasoning is unconscious, intuitive, and specializes in finding complex patterns. It is typically associated with the aesthetic emotion that John Keats called “beauty.” “Type 2” reasoning is conscious, articulable, and deductive. Scholars usually assume that legal reasoning is entirely Type 2. However, critics from Holmes to Posner have protested that unconscious and intuitive judgments are at least comparably important. This Article takes the conjecture seriously by asking what science can add to our understanding of how lawyers and judges interpret legal texts. The analysis is overdue. Humanities scholars ...


Roger Williams University School Of Law And The Women's Law Society Present Women In Robes 10-4-2018, Roger Williams University School of Law 2018 Roger Williams University

Roger Williams University School Of Law And The Women's Law Society Present Women In Robes 10-4-2018, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


Women In Robes 10/04/2018, Roger Williams University School of Law, Women's Law Society 2018 Roger Williams University

Women In Robes 10/04/2018, Roger Williams University School Of Law, Women's Law Society

School of Law Conferences, Lectures & Events

No abstract provided.


Law School News The First Circuit At Rwu Law 10/03/2018, Michael M. Bowden, Julia Rubin 2018 Roger Williams University School of Law

Law School News The First Circuit At Rwu Law 10/03/2018, Michael M. Bowden, Julia Rubin

Life of the Law School (1993- )

No abstract provided.


Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School of Law 2018 Providence Journal

Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Law Library Blog (October 2018): Legal Beagle's Blog Archive, Roger Williams University School of Law 2018 Roger Williams University

Law Library Blog (October 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


Blurring Institutional Boundaries: Judges' Perceptions Of Threats To Judicial Independence, Alyx Mark, Michael A. Zilis 2018 North Central College

Blurring Institutional Boundaries: Judges' Perceptions Of Threats To Judicial Independence, Alyx Mark, Michael A. Zilis

Political Science Faculty Publications

The legislature wields multiple tools to limit judicial power, but scholars have little information about how judges interpret variant threats and which they find most concerning. To provide insight, we conduct original interviews regarding legislative threats to courts with over two dozen sitting federal judges, representing all tiers of the federal judiciary. We find that judges have a nuanced understanding of threats and tend to identify components of legislative proposals that threaten formal institutional powers as more concerning than those challenging policy set by judges. This distinction has broad implications for our understanding of judicial behavior at the federal level.


Judicial Review In An Age Of Hyper-Polarization And Alternative Facts, David A. Dana, Michael Barsa 2018 University of San Diego

Judicial Review In An Age Of Hyper-Polarization And Alternative Facts, David A. Dana, Michael Barsa

San Diego Journal of Climate & Energy Law

This Article is organized as follows: Part I reviews the case law and commentary on judicial review of agency shifts in policy or practice, focusing on the technocratic case for deference and how recent political realities call such deference into question. Part II sets forth the background and history regarding fuel economy standards, leading to the Obama Administration’s adoption of standards in 2012 and the “midterm” review of those standards that Obama’s EPA declared final as of January 2017. Part II also reviews the legal issues surrounding Trump’s EPA’s “re-opening” of the midterm review. We suggest ...


Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill 2018 Columbia Law School

Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill

Fordham Law Review

It is a great honor to take part in the celebration of the Second Circuit’s 125th anniversary and in particular to present the Hands Lecture. The Second Circuit in the 1930s and 1940s came to be called the “Hand Court,” and during those years it established its reputation as the most admired of the U.S. circuit courts of appeals. It was called the Hand Court because two of its judges, who often formed the majority on three-judge panels, bore the surname Hand. Learned Hand is today regarded as a great common law judge, and significant attention has been ...


Playing Favorites? Implicit Bias On The Bench, Michele Benedetto Neitz 2018 Golden Gate University School of Law

Playing Favorites? Implicit Bias On The Bench, Michele Benedetto Neitz

Publications

The concept of implicit bias has moved to the forefront of public discussion in the last decade, and many judges have already been trained on this issue. But it is worth considering how a specific type of implicit bias, in-group favoritism, may affect a judge’s everyday decisions.


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