January 2018
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54 Reads
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1 Citation
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Publications (177)
March 2015
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81 Reads
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6 Citations
Duke Law Journal
This Article investigates the hypothesis that the most important and, often, controversial and divisive cases-so called "big" cases-are disproportionately decided at the end of June. We define a "big case" in one of four ways: front-page coverage in the New York Times; front-page and other coverage in four national newspapers (the New York Times, Los Angeles Times, Washington Post, and Chicago Tribune); the number of amicus curiae briefs filed in a case; and the number of subsequent citations by the Supreme Court to its decision in a case. We find a statistically significant association between each measure of a big case and end-of-term decisions even after controlling for the month of oral argument (cases argued later in the term are more likely to be decided near the end of the term) and case attributes (e.g., dissents and concurrences) that increase the time it takes to decide a case. We also speculate on why big cases cluster at the end of the term. One possibility is legacy and rep utational concerns: when writing what they think will be a major decision, the Justices and their law clerks take more time polishing until the last minute with the hope of promoting their reputations. Another is that the end-of-term clustering of the most important cases may tend to diffuse media coverage of and other commentary regarding any particular case, and thus spare the Justices unwanted criticism just before they leave Washington for their summer recess.
January 2015
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27 Reads
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6 Citations
SSRN Electronic Journal
Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have interns or externs or both (law students working part time). These staffs are essential, given judicial workloads and judges’ limitations. Yet not much is known about how the judges manage their staffs. Each judge knows of course, but judges rarely exchange information about staff management. Nor is there, to our knowledge, a literature that explains and evaluates the varieties of staff management by federal court of appeals judges. This article aims to fill that gap. It is based on interviews, some in person, most by telephone, of more than 70 judges, chosen mainly at random and covering almost all of the thirteen federal courts of appeals.
January 2015
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186 Reads
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3 Citations
The Journal of Legal Studies
This paper addresses the two main criticisms made by Cass Sunstein of the ideological rankings of justices in our book on federal judicial behavior. The first was that ranking justices from different time periods is problematic because the justices faced a different mixture of cases. The second questioned our implicit assumption that cases are fungible for the purpose of calculating a justice’s ideology. To address the first criticism, we use the votes of moderate justices to create an adjusted voting index for each justice that controls for the influence of nonideological factors (for example, changes in the characteristics of cases). We respond to the second criticism by ranking justices on the basis of their votes in the most significant and controversial cases—5–4 decisions and cases reported in the New York Times. Overall, these adjustments result in only minor changes in the rankings in our book.
November 2014
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58 Reads
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7 Citations
Review of Law & Economics
This exchange between Judge Posner and Professor Becker – two founding fathers of our discipline – was composed almost 3 years ago, but the perspective and wisdom of this exchange remains most relevant to this day. Since then, Professor Becker has died; Judge Posner has added a brief remembrance of Becker at the end of this exchange.
April 2013
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41 Reads
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43 Citations
Minnesota Law Review
March 2013
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145 Reads
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12 Citations
Indiana law journal (Indianapolis, Ind.: 1926)
January 2013
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97 Reads
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102 Citations
September 2012
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34 Reads
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3 Citations
Critical Review
The correct solution to complex problems, such as those involved in international relations, can generally be discovered ex post but not predicted ex ante. Economics and game theory attempt to model such complexity, but have difficulty taking into account psychological subtleties, the myriad factors that each agent considers when making a decision, and cultural differences. And understanding that one is dealing with a system—that is, with interacting factors instead of with insulated monads—may not make the questions any more amenable to prediction, particularly because the more unique an event, the less likely it is to be foreseen. Jervis's analysis of complex systems may therefore be more of a contribution to the historical sciences than to predictive social science.
June 2012
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317 Reads
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61 Citations
California Law Review
Judicial self-restraint, once a rallying cry for judges and law professors, has fallen on evil days. It is rarely invoked or advocated. This Essay traces the rise and fall of its best-known variant—restraint in invalidating legislative action as unconstitutional—as advocated by the “School of Thayer,” consisting of James Bradley Thayer and the influential judges and law professors who claimed to be his followers. The Essay argues, among other things, that both the strength and the weakness of the School was an acknowledged absence of a theory of how to decide a constitutional case. The rise of constitutional theory created an unbearable tension between Thayer’s claim that judges should uphold a statute unless its invalidity was clear beyond doubt (as it would very rarely be), and constitutional theories that claimed to dispel doubt and yield certifiably right answers in all cases.
Citations (82)
... On the other hand, the cultural heritage digitization achievements not only expand the existence forms of cultural heritage but also extend its existence space. Digital means make cultural heritage easier to disseminate and preserve, thereby promoting the transformation of the resource value of cultural heritage into economic benefits [23].In view of this, the digitization achievements of cultural heritage demonstrate the creativity of digitization workers in utilizing cultural heritage as a resource, thereby carrying the private interests and laying a logical premise and legal basis for the allocation of private rights to digitization achievements. Although courts in countries and regions such as the United States, the United Kingdom, Canada, and India have widely accepted and applied the "sweat of the brow" principle as a basis for judgment, many countries and jurisdictions have gradually abandoned this principle over time. ...
- Citing Book
December 2003
... First and foremost, IPR incentivize innovation and creativity by providing creators and inventors with exclusive rights over their creations. This exclusivity enables them to reap the rewards of their labor, encouraging investment in research and development across diverse fields such as technology, International Journal of Social Science Research and Review Volume 7, Issue 10 October, 2024 pharmaceuticals, entertainment, and design (Landes & Posner, 2003). Patents, copyrights, and trademarks offer legal protection, giving innovators the confidence to invest time, resources, and expertise into developing new products, processes, and services. ...
- Citing Book
November 2003
... They argue that, since requests for a preliminary ruling to the CJEU may only address points of law, higher courts will be more active interlocutors of the CJEU within the preliminary ruling mechanism. They further supplement this division-of-labour argument with a theoretical elaboration of the work-life balance incentives arising from variations in the judges' workload, thereby drawing on the labour market theory of judging developed by Epstein, Landes, and Posner (2013) in the US context. To the extent that writing a reference for a preliminary rulings typically adds to a judge's workload, a larger caseload increases the opportunity cost of submitting a preliminary reference. ...
- Citing Book
April 2012
... 4 A typical aim in this literature is to analyze how different types of liability rules, in different economic environments, affect socially optimal resource allocation in terms of accident avoidance. In particular, the prime concern of liability assignment is to what extent injurer or victim should be held responsible as well as whether and how negligence on both sides should be taken into account (see e.g., Shavell, 1980;Landes and Posner, 1987;Shavell, 2007). In comparison, we focus on the cascading effect of losses, giving (non-identical) agents dual roles as victim of the upstream agent and injurer of the downstream agent, along a multi-agent chain structure. ...
- Citing Book
January 2013
... Fisher investigates pointers of market force and shows that the capacity to bar rivalry is critical. Landes and Posner (2018) analysed the utilization of syndication power in antitrust cases. They dissect the highlights of the Lerner record and infer that portion of the overall industry can be a deceptive pointer of market power. ...
- Citing Chapter
January 2018
... 58 Some scholars, in commenting on Lawrence, analogously argued that the use of foreign materials determines an allocation of decision-making power to foreign bodies lacking democratic legitimacy. 59 Described by Markesinis and Fedtke as 'an American objection', 60 this critique assumes the use of comparative materials to be a potential threat to democracy and sovereignty. In the debate over the recognition of rights of gays and lesbians it implies an undemocratic exercise of judicial discretion and improper policymaking by constitutional and supreme courts in a field in which they should confine themselves to enforcing only domestic sources, enacted by democratically accountable representatives of the people. ...
Reference:
Table of contents - Introduction
- Citing Article
November 2005
Harvard Law Review
... On the positive side Hall and Harhoff (2012), Brusoni et al. (2006), Landes and Posner (2003), Menell (1999), Denicolo and Franzoni (2003), Kitch (1977), and Machlup and Penrose (1950), conclude that stronger IPR protection contributes to more and better disclosure of the already developed technology, hence to its dissemination and improved innovation performance. On the negative side, a higher level of IPR protection further limits the accessibility of the already available knowledge stock, lowering the efficiency of R&D investment, thus lowering growth. ...
- Citing Article
March 2003
The University of Chicago Law Review
... Legal scholars and political scientists have focused much empirical attention on the U.S. Supreme Court. Empirical 1 For judicial preferences, see Posner (1993Posner ( , 2005Posner ( , 2010Posner ( , 2011. For a defence of the formalist view, criticizing the empirical studies showing the presence of political influence in judicial decision-making, see Edwards and Livermore (2009). ...
- Citing Article
January 2011
Northwestern University law review
... Isso porque a inovação judicial ocorre de maneira progressiva, baseada em casos e preceitos legais preexistentes. Posner (2004) ilustra o processo incremental judicial por meio do exemplo da segregação nos EUA. Apesar da Constituição estadunidense exaltar a igualdade, o princípio de "iguais porém separados" era constitucional, e a segregação racial era comum. ...
- Citing Chapter
November 2005
... Theoretically, this privilege is an exclusive right, which is a power from the author to prevent others from making copies, so that it will increase the total income of the creator and encourage him to create other works (Landes & Posner, 1989). ...
- Citing Chapter
December 2007