Book Discussion on "Embedded Courts"

Asian Journal of Criminology, 2010

SSRN Electronic Journal, 2017

We review the basic building blocks of the case-space approach to modeling courts, particularly cases, dispositions, and rules. We provide numerous examples of case spaces. We clarify the policy-making actions of courts, distinguishing statutory interpretation, review of agency rule-making on procedural grounds, review of agency rule-making on substantive grounds, and constitutionsl review. We demonstrate that simple versions of the case-space approach are extensible to more complex legal concepts such as evidence, doctrine, and causes of action. We note some of the feed back e¤ects of judicial actions, particularly on the distribution of presented cases, the behavior in society at large, and on social welfare. This essay is a draft chapter of a book-in-progress on the positive political theory of courts.

Social Science Research Network, 2015

The Asian Continent encompasses circa 50 autonomous states and comprises the central and eastern portions of the Eurasian landmass, the world's largest. Taken as a whole, the continent's rich cultural, intellectual and political histories extend over tens of centuries, highlighted by the powerful Mongol Empire, the imperial dynasties of China, and the majestic Persian empires, among others. In the 19 th and early 20 th Centuries, key Asian states were invaded and conquered, then colonized. In the latter half of the 20 th and early 21 st Centuries, those states have largely reasserted their autonomy, and the more proactive and ambitious among them reversed their economic and political malaise to emerge as powerhouses on the global stage. A key component of the institutional framework of these emerging states is the alliance of legal mechanisms and authorities that define, interpret, and apply the laws and administer justice. Within those alliances, two of the core elements are (i) the legislative power of government that formulates the positive laws of the state, and (ii) the judicial power that interprets and applies those laws and administers justice.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License: http://creativecommons.org/licenses/by-nc-nd/3.0/ Reprint from 'A Constellation of Courts' -ISBN 978 90 5867 990 1 -

Asian Journal of Criminology, 2012

SSRN Electronic Journal, 2011

This essay is a “provocation” invited by the editors (Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan) of a volume provisionally entitled, Consequential Courts: New Judicial Roles in Global Perspective. The book brings together original essays on constitutional courts in new or restored democracies and the expansion of judicial roles together with general theoretical essays by the editors and three invited “provocateurs.” References in the book to individual chapters are in the form of the (author’s name, country on which the chapter focuses). I am grateful to the editors for the opportunity to participate in conversations around the power of courts, to Malcolm Feeley for his insights and encouragement on this essay, and to Lucien Karpik and Malcolm Feeley for their continuing expansion and refinement of the ideas that have emerged from our common endeavor on the legal complex and political liberalism.

International Review of Law and Economics, 1992

Economic analysis of law has predominantly sought to explain and to evaluate the content of legal rules rather than the process by which they are created. When economists have attended to process, they have either focused on legislatures or treated judicial processes as black boxes, as in the literature on the evolution of the common law (as in Rubin, 1977; Priest, 1977; Cooter and Kornhauser, 1980)1 or in the literature on the relation of courts to legislatures (e.g., Easterbrook, 1984; Landes and Posner, 1983; Macey, 1986). This inattention to judicial process undoubtedly has several sources. Courts, after all, are not representative institutions. On most jurisprudential accounts, they are not even political institutions in the sense that legal argument and political argument differ. 2 Consequently, the inability to identify a plausible objective function to impute to judges has frustrated economic analysis from the outset. 3 This paper and a companion paper, "Modeling Collegial Courts II: Legal Doctrine." were prepared for the conference on Collective Choice and Constitutional Law, Stanford, CA, October 25-27. 1990. I have benefited from comments prepared for the conference by Pablo Spiller and Martin Shapiro and by the discussion there.

California Law Review, 1992

Law and History Review, 2009

But this brings us to a major drawback. While the chapters abound in interesting empirical detail, they are not unified by a controlling historical thesis. The problem here is twofold. First, the analytical content of chapters is neither carefully framed nor forcefully argued. Second, Totani's analysis seldom pertains to the historical dimensions of the Tokyo trials. We learn too little about the competing notions of "justice" held and advanced by the actual participants. Instead, the book is preoccupied with a contemporary story line. It seeks to vindicate the quality of justice dispensed by the IMTFE from (what are viewed as) the misinformed and distorted criticisms both of Japanese "right wing nationalists and conservatives" (129) and left-leaning detractors of imperialism in Asia. The Tokyo trials might have been selective and one-sided, Totani contends, but the trials also had too many commendable features and, especially, commendable effects, to be casually dismissed as "victor's justice." To its great credit, so it is urged, the IMTFE "has become an integral part of the historical development of the international justice system" (4). Maybe it has. But here we encounter a confusion of purposes. The claim that the IMTFE contributed importantly to international criminal jurisprudence might be as right as rain, but it is not a historical claim, one that purports to explain how and why the trials and punishments unfolded as they did in 1946-1948. For that book, a fully realized historical treatment of the IMTFE, we continue to wait.

2012