Judicial Decision-Making (Scirica)
M 3:00PM - 5:40PM
Silverman Hall 240A
This is a course on judicial decisionmaking. The course material has been developed by certain distinguished law professors and is the prelude to a forthcoming casebook, likely to be published in 2020. The course material will be available on Canvas.
There will be a final examination.
The following is a brief course description.
Chapter One: Introduction. This Chapter considers the landmark decision in Brown v. Board of Education from both a legal and sociological perspective. The conventional wisdom on Brown is that the decision is difficult to explain by reference to traditional legal sources. If that’s true, why did the Justices do what they did? Does the history of Brown shed any light on how we should make sense of contemporary debates over Brown’s legacy? The goal of this Chapter is to introduce you to some of the themes we’ll explore in more detail throughout the semester, particularly the location of the line (if there is one) between what we call “law” and what we call “policy.”
Part I: Judges and Law
Chapter Two: The Limits of Law. Judges wear black robes, in part to obscure their individuality. It is the law that decides cases, not the judge. Or so it is in theory—reflected in the famous statement that “ours is a government of laws, not of men.” But to what extent is that true in practice? This Chapter begins to explore these questions.
Chapter Three: The Identity of the Judge. This Chapter introduces you to some of the leading political science accounts of judging, and—more broadly—to the empirical study of judicial decisionmaking.
Part II: Case Management
Chapter Four: Setting the Judicial Agenda. This Chapter builds off a deceptively simple observation: cases matter. The law we get from courts depends in large part on the cases that judges hear, and when they hear them. Yet, to an important extent, judges do not set their own agendas. Other players in the legal system, including litigants, lawyers, and legislators, have enormous influence over which cases are presented to judges for decision. This Chapter considers litigation from the perspective of those other actors.
Chapter Five: Judging in a Constrained Environment. This Chapter examines how judges cope with various resource constraints, including limited knowledge and limited time. To what extent do resource constraints determine the shape of legal doctrine?
Part III: The Structure of the Legal System
Chapter Six: Judicial Hierarchy. Thus far we will have been talking about judges largely in isolation, ignoring the fact that most judges make decisions in concert with other judges. Almost all of the important adjudicative decisions that federal and state judges make are to some degree conditional on the approval of other judges “above” them in the judicial hierarchy. This Chapter seeks to understand the organization of the judicial hierarchy, and explores how the hierarchical nature of the judicial system affects decisionmaking.
Chapter Seven: Collegial Courts. Many courts decide cases via multi-member panels of judges. This Chapter considers how the need to interact with other judges affects judicial decisionmaking.
Part IV: Law in a Democratic System
Chapter Eight: Judicial Selection. This Chapter examines how judges are selected and retained, and how different systems for selection and retention—e.g., merit selection vs. appointment with life tenure vs. periodic elections—affect judicial decisionmaking.
Chapter Ten: Public Opinion. This Chapter considers whether and how judicial decisionmaking is affected by, and responsive to, public opinion.
Courts and the Judicial System Learning outcomes: Demonstrate a core understanding of both substantive and procedural issues in the operation of our legal system; Perform legal analysis in the context of procedural issues and the judicial process; Communicate effectively on topics related to procedure and the judicial process; Demonstrate an understanding of how procedural issues and the judicial process affect all other area of our legal system.
"Judicial Decision-Making: A Coursebook" by Friedman, Lemos, Martin, Clark, Larsen, and Harvey