Judging in the 21st Century

Since your first week of law school, you have been reading legal opinions written by judges. Who were those judges and did their identities affect their views? From a judge's perspective, what makes a case hard or easy? Did the process by which the judge was selected--or could be removed from office--influence her or his decision? How do judges make choices about the larger legal ecosystem in which you will practice law? After all, judges determine many aspects of the legal environment in which lawyers operate, from whether you can livestream a court hearing from your phone to whether you will take the bar exam in person or online. Taught by a Justice on a California Court of Appeal, this seminar explores judicial decision making about cases and the court system from a variety of perspectives. It draws from accounts by social scientists, lawyers, and judges themselves, analyzing what judges do and critiquing how they do it. The seminar examines systems of judicial selection, evaluation, and removal in both the federal and state court systems and their potential effects on judicial decision making. We will take up questions such as whether the identity of judges matters to their decisions, how heuristics or implicit biases might influence outcomes, how communities try to choose "good" judges and what they do when those choices go wrong, evaluate efforts to diversify the bench, and consider what lessons might be learned from the experiences of various states in evaluating and electing judges. One theme of the seminar involves the interaction of judges with litigants, the public, and other government actors--on twenty-first-century terms. We will ask how courts should manage questions related to transparency, privacy, access to justice, and technology. We will think about how judges might choose or be compelled to rely on emerging automation technologies, whether simple algorithms or advanced machine learning. We also will consider the extent to which judges do and should take into account the views of executive officials, legislators, nongovernmental organizations, and members of the general public when deciding cases and structuring the legal system. In addition, we will look at ethics rules governing what judges can learn and what they can say. For example, can or should a judge run an experiment that tests a litigant's factual assertion, or, in her free time, write an online product review, lead a religious group, or participate in a commission to improve state government? The seminar will pursue these questions from both theoretical and practical perspectives. Sitting judges from a variety of courts will share their insights with seminar participants. Students will write a research paper on a relevant topic of their choice, and will be encouraged to think critically about how judges make decisions and how courts can be improved in realistic ways. We will think together about how judges and courts can best deliver justice in a changing, contested, unequal, and increasingly complex world. Elements used in grading: Attendance, Class Participation, Written Assignments, Research Paper.