Adjudication

A short (about 1,000 words) overview of adjudication, describing the standard view (judges should just apply the law, when possible) and two goal-oriented views: wealth maximization and the maximization of well-being – i.e., utilitarian adjudication

Judicial Specialization and the Adjudication of Immigration Cases

When scholars and policymakers consider proposals for specialized courts, they are usually and appropriately mindful of the potential effects of specialization on the adjudication of cases. Focusing on the immigration field, this Article considers these potential effects in relation to other attributes of adjudication: the difficulty of cases, the severe caseload pressures, and the strong hierarchical controls that are each important attributes at some or all levels of the adjudication system. Specifically, this Article discusses the effects of those attributes, the effects of judicial specialization, and the intertwining of the two. It applies that analysis to proposals to substitute some type of specialized court for the federal courts of appeals in the adjudication of immigration cases. The Article concludes that the impact of adopting such a proposal could be substantial but that it is also quite uncertain. To a considerable degree, the impact depends on the form of specialization adopted and on other provisions of the legislation that creates a specialized court

Punishment and Dispute Settlement in Trade Agreements.

This paper interprets dispute settlement procedures and punishments as responses to the fact that trade agreements are incomplete contracts. If no weight is given to the adjudication phase and if the degree of trade relatedness is known with certainty, the negotiated trade agreement will feature commensurate punishments, will induce violation of the dispute settlement ruling, and will deliver optimal liberalization and optimal unilateral trade-related action. With the adjudication phase of concern, the trade agreement will feature less liberalization, but still with a presumption of at least approximate commensurate punishment. The optimal trade agreement will likely induce abiding by the ruling when negotiators attach more importance to the adjudication phase, and violating it when they attach less.

Adjudication in the Age of Disagreement

In the time I have here with you today I would like to offer the beginnings of an answer. It does not lie in the distance between the court’s traditions and Manton’s conduct. That would be too easy. At base, I think the answer lies in something far more subtle and interesting: the relationship between acentral tradition of the Second Circuit and one of the great questions we face as a society today. That question is how to deal with disagreement

Order Without Judges: Customary Adjudication

Scholarship on custom and law has largely focused on the creation and enforcement of informal rules, demonstrating and in some cases endorsing the existence of order without law. But creating and enforcing rules are only two of the three functions of governance, corresponding roughly with what in other contexts are called the legislative and executive branches. The third function—adjudication—has not played such a prominent role in the scholarly literature on informal governance. As one leading scholar puts it: Custom has no constitution or judges. But if customs can be created and enforced by nonstate actors, why should scholars assume that formal (that is, noncustomary) courts are the only institutions that do or should adjudicate those customs? This Essay seeks to describe and emphasize the role of customary adjudication, the third branch of customary governance. In doing so, it has three main goals: first, to argue that customary governance can be understood in terms of the same three functions familiar to students of formal governance; second, to deliver a preliminary and tentative account of the third of these branches; and finally, to suggest that existing scholarship on custom and law has given comparatively little attention to the functions and forms of customary adjudication. If successful, those contributions should set the stage for future descriptive and normative work

A New Generation of International Adjudication

This Article challenges the conventional view of contemporary international adjudication. It identifies a new generation of international tribunals, which has been largely ignored by commentators, and argues that these tribunals offer a highly successful, alternative model to traditional public-international-law adjudicatory bodies. The proliferation of international tribunals is widely regarded as one of the most significant developments in international law over the past century. The subject has given rise to an extensive and robust body of academic commentary. Although commentators reach widely divergent conclusions about many aspects of international law and adjudication, they all agree that international tribunals differ fundamentally from national courts. In particular, according to the commentary, international tribunals such as the International Court of Justice lack the power to render enforceable decisions or to exercise compulsory jurisdiction. This Article argues that commentators have proceeded from a flawed and incomplete understanding of contemporary international adjudication. Virtually all commentary on the subject ignores the development of a second generation of international tribunals, best represented by international commercial and investment tribunals, World Trade Organization panels, and claims-settlement mechanisms. Contrary to the conventional wisdom about international adjudication, this new generation of international tribunals has the power to exercise what is effectively compulsory jurisdiction and to render enforceable decisions that can often be coercively executed against states and their commercial assets. These second-generation tribunals have been the most frequently used and, in many respects, the most successful form of international adjudication in recent decades. The caseloads of these tribunals have grown rapidly over the past forty years and now substantially exceed those of traditional public-international-law tribunals. Moreover, an analysis of state treatymaking practice over recent decades shows that states have virtually never concluded treaties accepting the jurisdiction of traditional first-generation tribunals—concluding less than one treaty per year—whereas they have frequently accepted the jurisdiction of second-generation tribunals capable of rendering enforceable decisions—accepting some fifty treaties per year. More fundamentally, second-generation tribunals have played an essential role in facilitating international trade, finance, and investment; have contributed to the development of important fields of international law; and have provided leading contemporary examples of international law working in practice. Although largely ignored by the commentary, the success and frequent use of second-generation tribunals have important implications for conventional analysis of international adjudication. The success of these tribunals flatly contradicts the claims, advanced by a number of academic commentators, that international adjudication is unimportant in contemporary international affairs and that states do not use international tribunals—particularly tribunals that would be effective. In reality, second-generation tribunals have been frequently and successfully used in vitally important fields, in part because they issue effective and enforceable decisions. At the same time, the success of second-generation tribunals also contradicts prescriptions, offered by a number of commentators, that future international tribunals be modeled on “independent” first-generation tribunals or, alternatively, on entirely “dependent” adjudicative mechanisms. Successful second-generation tribunals exhibit a blend of structural characteristics that defy blanket prescriptions for either “independence” or “dependence” and that counsel for more tailored, nuanced institutional designs

On the Mental State of Consciousness of Wrongdoing

Mistake about or ignorance of the law does not exculpate in criminal law, except in limited circumstances. Doctrine and theory cognate to this principle are, by now, well developed and understood. But might an actor\u27s awareness of the illegality or wrongfulness of her conduct inculpate — that is, constitute a form of mens rea that establishes or aggravates liability? Trends in recent adjudication in white collar crime suggest that the answer is yes. This article, part of a symposium issue on Adjudicating the Guilty Mind, takes the first pass at describing the mental state of “consciousness of wrongdoing,” assessing its fit with the conceptual architecture of substantive criminal law, and uncovering the many challenges of proof and adjudication that this concept poses. Three conclusions broadly emerge from this initial, and somewhat truncated, inquiry: first, inculpating an actor for adverting to the legal or normative significance of her conduct is an attractive means of dealing with difficult line-drawing problems presented by many white collar offenses; second, the method can be justified on both retributive and deterrent grounds; and third, the practice requires much more thought and precision at the operational level, lest problems inherent in the structure of criminal adjudication be exacerbated in cases in which liability depends on the idea that an actor “knew what she was doing was wrong

Honor Killings and the Construction of Gender in Arab Societies

This Article discusses the regulation and adjudication of honor killings in the Arab world and traces the distributive and disciplinary impact of such regulation/adjudication on Arab men and Arab women\u27s sexuality. In the afterword, the Article outlines the transformative effect of Islamicization of culture in the Arab world in the past twenty years on the practice of honor and killings committed in its name