Adam Smith and the Judiciary

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith in the Courts of the United States, at 56 Loyola Law Review 33 (2010). Here is the abstract.

Be it on topics of property, contract, commerce, trade, tax, legal history, or other matters, jurisprudence in the United States often invokes economic thinking in providing a rationale for legal outcomes. Consequently, I wondered how often the appeal to economic thinking in the courts included a reference to Adam Smith, the founder of modern economics. This essay traces the citations to Adam Smith in the judicial opinions of the Federal Courts starting with the first two cases to cite Smith in 1796; 214 years ago. The essay provides a brief contextual discussion about Smith and the way in which he has been cited over the years. This is followed by a report on the full set of citations to Adam Smith in the case opinions of the Federal Courts and in the legal briefs filed in those cases.



Between the years 1796 and 2009, Adam Smith is directly referenced in 162 cases, and in legal briefs filed in 213 cases. Over time Smith is cited for different purposes. He is cited in case opinions dealing with a range of topics including: tax, trade, commerce, labor, antitrust, and private property. The way in which Smith is referenced over time also changes. In general, references to Smith shift over time as he goes from being an authoritative reference on matters of taxation to being a mere iconic punctuation point in the arguments of those seeking to promote free markets and laissez-faire.



The article offers quotations from case opinions and establishes a record of Adam Smith’s appearances in the Courts of the United States. Interestingly, 70% of the citations to Smith occur since 1970. Hopefully, the article will be a fun piece to read no matter what one’s specialized research or teaching area may be.

Download the article from SSRN at the link.

Play That Funky Music, Your Honor

New York's Committee on Judicial Ethics says that Acting Supreme Court Judge Matthew D'Emic can play with his band after hours if potential parties aren't likely to appear before him, so Judge D'Emic, and other judges are free to rock to house, saying, ""The judge who wishes to pursue part-time employment as a solo musician may do so only occasionally, for a fee, for family, friends, neighbors and others who are unlikely to appear in the judge's court."

As it turns out, ethics committees in other states have examined this problem as well, coming to essentially the same conclusion. So the only worry Judge D'Emic has now is whether to rename his band. He seems have rejected current suggestions: (Rock-n-Robes, L.L. Cool Judge and The Electric Chairs). What about "Conflict of Interest"? ("No Conflict of Interest" just sounds too long). "Sidebar"? "Inadmissible"? "Judicial Conference"?

Judge Bao In Literature

Wilt Lukas Idema, Harvard University Library, has published Introduction to Judge Bao and the Rule of Law: Eight Ballad-Stories from the Period 1250-1450, in Wilt L. Idema, Judge Bao and the Rule of Law (World Scientific Publishing, 2009). Here is the abstract.

Pure, orthodox and incorruptible, Judge Bao has been serving as the preeminent embodiment of justice in China for almost a thousand years, so much so his court cases have been adapted as stories, novels and plays over the centuries. Now, for the very first time a series of eight ballad-stories on Judge Bao, dating from the period 1250-1450, are offered in a complete and annotated translation. These texts will provide the reader a reflection of the legend of Judge Bao in its earliest phase of development, with an extended introduction placing the ballad-stories in context with the development of the Judge Bao legend. These ballad-stories, in contrast to past plays dating from the same period, present abuse of power and corruption as endemic in the courts and bureaucratic service, and show Judge Bao imposing the rule of law even on the emperor.

Download the introduction from SSRN at the link.

See also Wilt L. Idema, The Pilgrimage to Taishan in the Dramatic Literature of the Thirteenth and Fourteenth Centuries 19 Chinese Literature: Essays, Articles, Reviews 23 (December 1997).

TV Judges and Tort Reform

Joshua Wilson and Erin Ackerman have published "TV Judges and the Civil Law Narrative" as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.

This is a collaborative study examining the relationship between popular reality-based judge television shows, 'tort tales,' and the politics of tort reform. TV judge shows share or approximate many features of the tort tale described by Haltom and McCann in Distorting the Law: Politics, Media, and the Litigation Crisis. The question driving our research is whether these TV Judge shows contribute to tort tales' conservative anti-litigation message or, instead, generate counter-narratives about the civil law system. Since tort reform is constantly a political issue, this study addresses one way in which popular support for tort reform might be mobilized.

A Review of William Domnarski's "Federal Judges Revealed"

Chad M. Oldfather, Marquette University Law School, has published "Oral History and the Study of the Judiciary," in volume 78 of George Washington Law Review Arguendo (2010). Here is the abstract.

This essay, which is a review of William Domnarski’s “Federal Judges Revealed” (Oxford University Press, 2008), explores the usefulness of oral history as a vehicle for understanding the judiciary. “Federal Judges Revealed” presents the insights gleaned from a study of over 100 oral histories given by Article III judges, ranging across the span of the judges’ lives. The essay first explores the methodological strengths and weaknesses of oral history as a general matter, and then further develops the analysis through a review of three oral histories given by the late Seventh Circuit Judge Thomas Fairchild. The essay then turns specifically to Domnarski’s book, outlining the ways in which it contributes to our understanding of judges and the judiciary.

The Influence of Narrative In Judging

Kenworthey Bliz, Northwestern University School of Law, is publishing "We Don't Want to Hear it: Psychology, Literature and the Narrative Model of Judging," in the University of Illinois Law Review. Here is the abstract.

The “narrative” model of legal judging argues that legal decision makers both do and should render judgments by assembling sensible stories out of evidence (as opposed to using Bayesian-type, linear models). This model is usually understood to demand that before one may judge a situation, one must give the parties the opportunity to tell their story in a manner that invites, or at least allows, empathy from the judger. This Article refers to this as the “inclusionary approach” to the narrative model of judging. Using psychological research in emotions and perspective-taking and the more intuitive techniques of literary criticism, this Article challenges the inclusionary narrative approach, arguing that, in practice, the law gives equal weight to an “exclusionary approach.” That is, in order to render sound, legitimate legal judgments, the law deliberately limits the sort of stories parties are allowed to tell – and does so on moral grounds, not, or at least not only, to improve the “accuracy” of the legal judgment. That is, as both a descriptive and normative matter, impoverished narratives can be better than enriched ones in leading decision makers to morally acceptable legal judgments.

Download the article from SSRN at the link.

Sports Metaphors and Analogies In Judicial Opinions

Douglas E. Abrams, University of Missouri School of Law, has published "Sports in the Courts: The Role of Sports References in Judicial Opinions," in Villanova Sports and Entertainment Law Journal (forthcoming). Here is the abstract.

In cases with no claims or defenses concerning sports, the Supreme Court and lower federal and state courts frequently publish opinions that draw analogies to the rules or terminology of sports familiar to broad segments of the American people. Sports analogies can help the court explain factual or legal points because today’s generation, including the lawyers and litigants who comprise the prime audience for written opinions, grew into adulthood amid an unprecedented saturation of professional and amateur sports in the broadcast and print media, and more recently on the Internet.

This article surveys the broad array of sports whose references now lace written judicial opinions, and then discusses the use and misuse of these references. Sports references can help courts explain and resolve complexity, but may also implicate Rule 1.3 of the Model Code of Judicial Conduct by detracting unacceptably from the prestige indispensable to the judicial role. A sports reference remains incompatible with judging when a reasonable reader would conclude that the court invoked it primarily for the judge’s personal pleasure and not to facilitate the communication of ideas.

Download the Article from SSRN here.

Rhetoric in Child Custody Decision Making

Linda L. Berger, Mercer University School of Law, has published "How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis of Metaphor, Narrative, and Imagination in Child Custody Disputes." Here is the abstract.

We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing "a sea-change," family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income.

This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, the article's aim is to help advocates make room for difference and diversity in the lives of families.

The rhetorical analysis indicates that the best interests of the child standard fails to explain child custody outcomes, and it suggests that the cognitive setting for custody disputes - cluttered with outmoded metaphors, simplistic images, and unexamined narratives - interferes with the ability of judges to attend to complex and radical transformations of parent and child relationships. The article proposes that practicing lawyers and scholars use rhetorical analysis first to uncover the symbols and stories that affect judicial decision making and then to construct arguments that may overcome deeply rooted constraints, help individual clients, and persuade policy makers.

Download the paper from SSRN here.

Daytime TV Judges

Taunya Lovell Banks, University of Maryland School of Law, has published "Judging the Judges - Daytime Television's Integrated Reality Court Bench," in Lawyers in Your Living Room, edited by Michael Asimow, (ABA Books, 2008). Here is the abstract.

This essay looks at the integrated courtroom on daytime reality television court shows like "Judge Judy", the reasons for the persistent over representation of women and non-white male judges on these shows, why some shows are more popular than other shows, and how these shows may influence the real American legal system.

Keywords: daytime television court judges

Download the paper from SSRN here.