How Does Science Come to Speak in the Courts? Citations Intertexts, Expert Witnesses, Consequential Facts, and Reasoning

Citations, in their highly conventionalized forms, visibly indicate each texts explicit use of the prior literature that embodies the knowledge and contentions of its field. This relation to prior texts has been called intertextuality in literary and literacy studies. Here, Bazerman discusses the citation practices and intertextuality in science and the law in theoretical and historical perspective, and considers the intersection of science and law by identifying the judicial rules that limit and shape the role of scientific literature in court proceedings. He emphasizes that from the historical and theoretical analysis, it is clear that, in the US, judicial reasoning is an intertextually tight and self-referring system that pays only limited attention to documents outside the laws, precedents, and judicial rules. The window for scientific literature to enter the courts is narrow, focused, and highly filtered. It serves as a warrant for the expert witnesses\u27 expertise, which in turn makes opinion admissible in a way not available to ordinary witnesses

Dogmatic and social scientific activism in the Lochner era

The Lochner era has much to say about conceptions of judicial role and judicial activism, and can be used as an analytical example. I examine the era from the aspect of judicial reasoning. The analysis is composed of three main units. First, I point out a distinction between judicial and constitutional, as well as between single activist decisions and tendencies. Second, I sketch a theoretical framework that concerns the inclusion of social sciences into judicial reasoning. “Social scientific passivistic” reasoning features references to exact data from social sciences, and tends to uphold the legislative action in question. On the other hand, “social scientific activistic” reasoning refers to social scientific data and aims to strike down the legislative action in question. In a similar vein, “dogmatic activistic” reasoning is grounded on precedents and methods of legal interpretation, tending to strike down a legislative act, while “dogmatic passivistic” reasoning aims at upholding such an act. These categories are not mutually exclusive; however, they help to analyze constitutional decisions with directing attention to their nature behind their prima facie content. Finally, I apply the scheme to the Supreme Court’s Lochner era constitutional adjudication

La réaction de la doctrine à la création judiciaire en droit pénal

This article is a survey of the attitudes of legal writers concerning judicial creation. A number of articles, studies and case comments in the areas of mens rea, duress and drunkenness are canvassed in order to determine their authors' views on the legitimacy of the rules established by courts in the above areas. Judicial creation often involves departures from traditional legal reasoning; the attitude of legal writers towards these departures is also studied. Finally, it is sought to establish the views of the doctrine on the characteristics and qualities which judicial creation should present. A number of points emerge from the study : attitudes towards judicial creation are generally favorable. The legitimacy of the creative role is most often taken for granted. As regards judicial reasoning, departures from stare decisis are generally seen as valid ; less unanimity is reached on departures from traditional rules of construction. There does not appear to be any perceptible difference between the attitudes of common law and civilian writers on judicial creation except on the point of rules of construction, where civilians seem somewhat more inclined to traditional views. In all cases, it was found difficult to determine the philosophical perspectives of the writers although these would normally be expected to have a strong bearing on the issue oj judicial creativity

The New Legal Realism

The last decade has witnessed the birth of the New Legal Realism - an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same time, many gaps remain. Numerous areas of law remain unstudied; certain characteristics of judges have yet to be investigated; and in some ways, the existing work is theoretically thin. The New Legal Realism has clear jurisprudential implications, bearing as it does on competing accounts of legal reasoning, including Ronald Dworkin's suggestion that such reasoning is a search for 'integrity.' Discussion is devoted to the relationship between the New Legal Realism and some of the perennial normative questions in administrative law.

The politics of prisoner legal rights

The article begins by locating human rights law within the current political context before moving on to critically review judicial reasoning on prisoner legal rights since the introduction of the Human Rights Act 1998. The limited influence of proportionality on legal discourses in England and Wales is then explored by contrasting a number of judgments since October 2000 in the domestic courts and European Court of Human Rights (ECtHR). The article concludes with a discussion of the implications of the restricted interpretation of legal rights for penal reform and proposes an alternative radical rearticulation of the politics of prisoner human rights

Flaming Misogyny or Blindly Zealous Enforcement? The Bizarre Case of R v George

This article examines the distinction between judicial reasoning flawed by errors on questions of law, properly addressed on appeal, and errors that constitute judicial misconduct and are grounds for removal from the bench. Examples analysed are from the transcripts and reasons for decision in R v George SKQB (2015), appealed to the Saskatchewan Court of Appeal (2016) and the Supreme Court of Canada (2017), and from the sentencing decision rendered by the same judge more than a decade earlier in R v Edmondson SKQB (2003). Both were sexual assault cases. In George a thirty-five year old woman with five children was tried and ultimately acquitted of sexual assault and sexual interference after she was assaulted in her home by a fourteen year old male. Striking similarities between the reasoning and language in the trial decision in George and the sentencing decision in Edmondson demonstrate entrenched antipathy for sexual assault law and the fundamental principles of justice, equality, and impartiality. This is arguably judicial misconduct, persisting despite access in the interim to many years of judicial education programming, not merely legal error. The problem does not lie with the judge alone, however. A toxic mix of misogyny and blindly zealous enforcement of the law appears to have undermined the administration of justice in George from the outset at all levels. The problems are systemic. Were this not the case, it is likely that Barbara George would not have been charged

Moral assessments in judicial reasoning

W artykule stawiamy dwa pytania: czy formułowanie przez sędziów ocen moralnych wymaga od nich posiadania szczególnych kompetencji moralnych oraz czy rozumowanie moralne ma charakter rozumowania racjonalnego? Odpowiadając na pierwsze pytanie, uważamy, że w sytuacji formułowania ocen moralnych sędziowie nie posiadają jakichś szczególnych kompetencji moralnych do rozstrzygania dylematów moralnych. Nie ma podstaw, by sądzić, że moralne eksperymenty myślowe, które nieodłącznie pojawiają się w pracy umysłowej sędziego, pozwalają przyjąć, iż rozumowanie sędziów jest bardziej moralne/ lepsze moralnie aniżeli rozumowanie innych podmiotów działających w sferze publicznej. Odpowiadając na drugie pytanie, uważamy, że skoro zazwyczaj ludzie są nieświadomi tego, co wpływa na ich oceny moralne, można przyjąć, że również sędziowie mogą być nieświadomi tego, co powoduje ich osądy moralne, błędnie przy tym przyjmując, że racjonalnie podejmują decyzje. Intuicje pełnią ważną rolę w dokonywaniu ocen moralnych również w przypadku osób wykonujących zawody prawnicze, od których to oczekuje się, by opierały się na racjonalnym rozumowaniu oraz obiektywnym rozpatrywaniu różnych argumentów.There are two questions posed in this text: (i) does the formulation of moral assessments by judges require from them any special moral competences and (ii) does the moral reasoning have a character of rational reasoning. Answering the first question we claim that when it comes to formulating moral assessments, judges do not have any special moral competences to adjudicate in difficult moral dilemmas. Thus there is no reason to state that moral thinking experiments which are an inseparable element of a judge’s reasoning process, allow to adopt a thesis that the reasoning of judges is morally better or more moral than the reasoning of other entities operating in the public sphere. Answering the second question, we believe that since people are generally unaware of what influences their moral judgements, it may also be so that the judges may not know what makes them adopt and pursue certain moral judgements, when they believe, erroneously, that their decisions have been rationally made. Intuition plays an important role in the making of moral judgements, also when it comes to the legal profession, since the latter are expected to base their attitudes on rational reasoning and an objective consideration of differing arguments

The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection

A core insight of the legal realists was that many disputes are indeterminate. For example, in many appellate adjudications, respectable legal arguments can be made for both sides of the dispute. A contemporary reaction to the realist insight by critical legal scholars is expressed in the slogan Law is politics. This critical slogan might be elaborated as follows: in openly political activities, such as the legislative process or partisan elections, debate centers on issues of value and social vision that are outside the scope of legal reasoning. Judicial opinions merely dress up political decisions in the garb of legal reasoning. The realist insight and critical reaction challenge conventional notions about the selection of appellate judges on the basis of merit-a combination of legal expertise and judicial temperament. If appellate judges really render decisions on the basis of politics, then why should judges be selected (or elected) on the basis of merit? In his essay, Judging in a Corner of the Law, Professor Schauer has gone so far as to suggest that appellate judges need not be lawyers and certainly need not be experienced or excellent lawyers. Moreover, Schauer maintains, the skills and knowledge desirable in appellate judges are not even taught in law schools