Conceptualizing Appealability: Resisting the Supreme Court’s Categorical Imperative

This paper draws on insights from cognitive psychology to understand how courts conceive of categories of orders. Cognitive psychologists have shown that people understand the world using not only classical categories based on logical definitions, but also conceptual categories based on fuzzier, intuitive concepts of similarity and typicality. This paper approaches appealability as a two-step process-first, categorizing the order and, second, applying the appropriate doctrine. Previous interventions have focused on whether different doctrines use rules or standards at the second step. This paper focuses on the initial categorization step. This paper makes two contributions to the study of federal appealability. First, it maps the appealability doctrines on both a rules-standards continuum and a classical conceptual categorical continuum. It shows that different applications of the final judgment rule employ different categorical approaches. Sometimes, when applied to formal final judgments and truly final orders, the final-judgment rule uses classical categories of finality. But in other applications, particularly the finality-for-appeal doctrines, it uses conceptual categories. Second, this paper argues that, despite the Supreme Court\u27s categorical imperative, courts should employ a flexible conceptual approach to identify new categories of orders that are final-for-appeal. It posits some potential features of those new conceptual categories. Over time, intuitive, conceptual categories could produce more definite classical categories, but only if courts have the opportunity to implement and iterate on them. Shutting down the finality-for-appeal doctrines because of the Court\u27s categorical imperative would frustrate that development

Conceptualizing Appealability: Resisting the Supreme Court\u27s Categorical Imperative

This paper draws on insights from cognitive psychology to understand how courts conceive of categories of orders. Cognitive psychologists have shown that people understand the world using not only classical categories based on logical definitions, but also conceptual categories based on fuzzier, intuitive concepts of similarity and typicality. This paper approaches appealability as a two-step process-first, categorizing the order and, second, applying the appropriate doctrine. Previous interventions have focused on whether different doctrines use rules or standards at the second step. This paper focuses on the initial categorization step. This paper makes two contributions to the study of federal appealability. First, it maps the appealability doctrines on both a rules-standards continuum and a classical conceptual categorical continuum. It shows that different applications of the final judgment rule employ different categorical approaches. Sometimes, when applied to formal final judgments and truly final orders, the final-judgment rule uses classical categories of finality. But in other applications, particularly the finality-for-appeal doctrines, it uses conceptual categories. Second, this paper argues that, despite the Supreme Court\u27s categorical imperative, courts should employ a flexible conceptual approach to identify new categories of orders that are final-for-appeal. It posits some potential features of those new conceptual categories. Over time, intuitive, conceptual categories could produce more definite classical categories, but only if courts have the opportunity to implement and iterate on them. Shutting down the finality-for-appeal doctrines because of the Court\u27s categorical imperative would frustrate that development

The Ideal Judge: How Implicit Bias Shapes Assessment of State Judges

Judicial Performance Evaluation (JPE) is generally seen as an important part of the merit system, which often suffers from a lack of relevant voter information. Utah’s JPE system has undergone significant change in recent years. Using data from the two most recent JPE surveys, we provide a preliminary look at the operation of this new system. Our results suggest that the survey component has difficulty distinguishing among the judges on the basis of relevant criteria. The question prompts intended to measure performance on different ABA categories are also indistinguishable. We find evidence that, on some measures, female judges do disproportionately worse than male judges. We suggest that the free response comments and the new Court Observation Program results may improve the ability of the commission to make meaningful distinctions among the judges on the basis of appropriate criteria

Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie and Exceptions

Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards such overlapping claims. In order to ensure that their combined scope is no greater than the sum of their parts, both trademark and copyright defenses ought to be considered together. The Barbie cases highlight the problem that overlaps between the two regimes can challenge the very idea of IP boundaries, unless robust defenses exist against overclaiming

Electronically Manufactured Law

This Article seeks to strengthen the case for the academy and the legal profession to pay heed to the consequences of the shift to electronic research, primarily by employing cognitive psychology to guide predictions about the impacts of the shift and, thereby, address a perceived credibility gap. This credibility gap arises from the difficulty and imprecision in postulating how changes in the research process translate into changes in researcher behavior and research outcomes. Applying principles of cognitive psychology to compare the print and electronic research processes provides an analytical basis for connecting changes in the research process with changes in researcher behavior and research outcomes. Cognitive psychology generates two specific predictions about how electronic research will change the law. First, electronic research will lead to increased diversity in framing -- divergence in the selection of the legal theory or theories through which to conceptualize facts, arguments, and cases. Second, electronic research will lead to more tilting at windmills -- the advancement of marginal cases, theories, and arguments. The Article explores how an increase in diversity in framing and tilting at windmills could affect the legal profession and the law. For example, in an adversarial system, judicial options for case resolution are largely defined and constrained by the theories proffered by counsel. Diversity in framing could expand judicial authority by providing judges with a wider variety of options for dispute resolution. This underlines the way in which counsel serve as gatekeepers by exercising judgment about which cases and theories have sufficient merit to warrant pursuit. Increased tilting at windmills may require recalibration of the existing limits placed on lawyers in their role as gatekeepers. Recalibration may be necessary to prevent the dedication of client and judicial resources to lost causes spurred by lapses in judgment related to electronic research and to allow attorneys to advance, without fear of sanctions, thoughtful arguments designed to push doctrinal boundaries. Specifically, Part II reviews existing legal theory, scholarship, and data that suggest that the shift to electronic research will likely have broad-ranging impacts. Part III compares print and electronic research and discusses three particularly salient changes in research process: (1) electronic researchers are not guided by the key system to the same extent as print researchers when identifying relevant theories, principles, and cases; (2) electronic researchers do not encounter and interpret individual cases through the lens of key system information to the same extent as print researchers; and (3) electronic researchers are exposed to more and different case texts than print researchers. Part IV uses principles of cognitive psychology to examine these process differences and predict two major non-process consequences of the shift to electronic research: increased diversity in framing and tilting at windmills. Part V concludes by assessing the broader significance of these hypothesized consequences

Examining Distinctive Jurisprudence in the Federal Circuit: Consequences of a Specialized Court

After reviewing jurisprudence that is consistent with the predicted behavior of specialized courts, this paper will discuss some recent Supreme Court cases which address some of the Circuit\u27s distinctive jurisprudence. In addition to examining evidence of characteristics consistent with specialization-caused effects, this paper will highlight several examples suggesting that the perception is growing at the Supreme Court that the Circuit is behaving as a specialized court developing distinctive jargon and rules, and unduly tending to its constituency. That perception may or may not be justified, but there are signs that the CAFC is responding to the perception in its early cases implementing the Supreme Court rulings

Legal Forms and the Common Law of Patents

The question of institutional choice is important in all areas of the law, but particularly in the context of patent law with its divergent stakeholders, decentralized variance among industries regarding how the patent system is viewed and relied upon, and a persistent focus on reform in recent years. For over two hundred years, the courts have been the dominant force in the development of patent law. It should therefore come as no surprise to learn that a significant portion of American patent law, including some of the most important and controversial patent law doctrines, is either built upon judicial interpretation of elliptical statutory phrases or is devoid of any statutory basis. Thus, while Congress and the courts each have a hand in constructing the latticework of patent law, judges - not the authors of lex scripta - are the principal architects. The common law process - in the Hayekian sense - situates the judge within a given technological community, where norm identification can be more easily recognized and representative legal frameworks constructed that are more closely tethered to relevant social context. Such a pronounced common law role offers an opportunity to exercise significant discretion. How this judicial discretion has been managed can be gleaned from the common law’s willingness to construct legal forms, most notably the choice and balance between the creation of a rule-based (or rule-like) jurisprudence and a more standard-oriented approach. The evolution of the common law of patents has been interstitial and nuanced, displaying an understanding that a body of law devoted to promoting technological innovation - a decentralized enterprise with attendant norms unique to each innovative community - more often than not requires a less dichotomous approach, constructing analytical frameworks that are situated somewhere between a spotless rule and a pure standard. Through the lens of comparative advantage, therefore, this experience provides a strong case for judicial primacy in the context of substantive reform, and an important, yet modest, Congressional role, one limited to (1) bringing about procedural change or altering patent law’s judicial architecture; and (2) engaging in substantive corrective action by addressing a common law gone awry

Taking Justice Seriously: the problem of courts overload and the new model of judicial process

This article traces a profound world-wide metamorphosis of the judicial process. It analyses recent procedural legislations adopted in the United Kingdom, the Unites States of America, France, Germany, Spain and Italy fashioned to address the problems of unreasonable delay and access to justice. The main tendencies that emerge from the analysis outline the passage from an authoritarian model of adjudication to a more cooperative approach based on flexibility of the time schedule and availability of alternative choices. Moreover, an instrument generally adopted to reduce the demand for justice is the selection of meritorious cases on the base of the conformity to precedents. It is, indeed, a procedural law development that may change the perspective on the civil law-common law divide