Jurimetrics

'Judging the Judiciary by the Numbers: Empirical Research on Judges' by  Jeffrey J. Rachlinski and Andrew J. Wistrich in (2017) 13 Annual Review of Law and Social Science asks

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.

The authors comment

Judges are the axle on which the wheels of justice turn. They manage pretrial proceedings, mediate settlement conferences, rule on motions, conduct bench trials, supervise jury trials, take guilty pleas, impose criminal sentences, and resolve appeals. In the process, they find facts, make or apply law, and exercise discretion. Judges wield enormous power and society therefore rightly expects much of them. Judges must be fair minded, impartial, patient, wise, efficient, and intelligent (Wistrich, 2010). They must set aside their politics and their prejudices, make rational decisions, and follow the law. (See, e.g., American Bar Association, Model Code of Judicial Conduct, 2011, Rules 1.1, 1.2, 2.2, 2.3, 2.4, 2.5, 2.8). But is it possible for judges to perform as we expect?

The answer to this question remains somewhat uncertain. Twenty years ago, Lawrence Baum (1997, p. 149) concluded, “Despite all the progress that scholars have made, progress that is accelerating today, we are a long way from achieving truly satisfying explanations of judicial behavior.” Much more research has been conducted since then, but judicial behavior still remains something of a mystery. Some scholars argue that judges behave rationally but make decisions that further their self-interest ( Epstein et al. 2013). That assertion, however, raises as many questions as it answers: What do judges see as their self-interest? Are fairness and impartiality their primary goals? What incentives do judges really face? After all, they rarely lose their positions and seldom get promoted. And even if judges primarily strive for fairness and impartiality, do they achieve these goals?

Research on human judgment and choice indicates that most people face cognitive limitations that lead them to make choices that do not consistently further their own ends (Ariely 2009). People commonly rely on intuition and simple shortcuts (or  heuristics) to make choices (Kahneman 2011). Heuristics can be effective and surprisingly accurate (Gigerenzer and Todd 1999), but can also lead to predictable mistakes when over-applied or misused. These problems plague professionals as well. Research on doctors, dentists, accountants, futures traders, and others shows that they all fail to live up to an idealized standard of judgment in many settings ( Ariely 2009). It would be surprising if judges are any different.

The available research on judges suggests that they sometimes f all short of the lofty ideal to which society holds them. A growing body of research supports the conclusion that although judges are often excellent decision makers, they have vulnerabilities. At the outset, we know that in some areas of law, judicial decisions are too chaotic. A study of immigration asylum decisions, for example, reveals that some judges grant asylum in a high percentage of cases while others almost never grant asylum (Ramji-Nogales et al. 2007). Asylum outcomes thus turn on the random assignment of a case to one judge or another. Decisions concerning whether to grant leave to appeal or to allow release on bond in immigration cases are similarly erratic ( Rehaag 2012; Ryo, 2016). Concerns about variation in conviction rates have also long haunted criminal law (Weisselberg and Dunworth, 1993). Even in criminal sentencing decisions in federal court, in which a highly structured set of guidelines cons trains judges, variation remains robust ( Scott 2011). Judges do not seem to decide as reliably as might be hoped or expected. Worse still, the variation does not just arise from chaos or a lack of meaningful standards, it arises from systematic vulnerabilities in how judges think.

This article surveys the empirical research that assesses whether judges live up to the standards of their profession. The evidence accumulated to date reveals that judges fall short in predictable ways. First, as the legal realists feared, judges’ personal characteristics influence their decision making. Specifically, the research indicates that when cases raise issues that are salient to judges’ personal characteristics, they do not consistently put their characteristics aside. Second, judges overreact to mechanisms of accountability, such as appellate review, retention, and promotion. Third, judges rely too heavily on intuitive ways of thinking that can be misleading. Fourth, in making decisions, judges sometimes rely on factors outside the record, including inadmissible evidence, their emotional reactions, and prejudices.

To be fair to judges, they labor under a great deal of academic scrutiny. The existing research on judicial decision making probably focuses too heavily on judicial failings. Scholars conduct their research with an eye towards showing that judges are politically motivated or biased. This is understandable, given the ideal of neutral judging that society expects from judges, but the emphasis on deviations likely makes judges seem worse than they are. The research includes several studies in which judges adhere to an ideal norm of neutrality, and we certainly include these in our review. No studies really provide usable estimates of how many cases are skewed by politics, prejudice, or other misjudgment, and the research does not support a means of making a reasonable estimate. The circumstances under which judges deviate from the norm are nevertheless worth exploring, not to make judges look bad, but to identify potential ways they might improve.

In reaching our conclusions, we review a diverse array of both experimental and field studies of judicial decision making. We set aside judges’ autobiographies and biographies, interviews of judges, careful parsing of individual opinions, and judges’ own accounts of how they make decisions. Such undertakings can provide valuable insights, but our focus lies on systematic empirical accounts of judicial decision making. These include archival studies of actual decisions and experiments or simulations using hypothetical cases. Although most research on judges emphasizes decisions of the US Supreme Court (especially since the Second World War), our focus lies with the state courts, lower federal courts, and a handful of international studies. Although the US Supreme Court is important, of course, it resolves few cases and represents only a tiny window into the judicial decision-making process. Each of the studies we incorporate into our analysis involves vastly more judges than the 39 people who have served on the Supreme Court in the last 70 years. The focus on the Supreme Court also tends to emphasize the role of politics in judging. Political influence is only one way judges can fail to meet the demands of their roles. We discuss this concern but expand upon it.

In New Zealand The Wheels of Justice: Understanding the Pace of Civil High Court Case by Bridgette Toy-Cronin, Bridget Irvine, Kayla Stewart and Mark Henaghan comments 

Delays in the court process are a key obstacle in accessing justice. Delay creates costs; not only in the loss of time but also financial and psychological costs. These costs are borne by the litigants, the economy, and the public purse. This is the first major New Zealand study to investigate the pace of High Court civil cases and to examine if, and where, delays might occur. 

In this report, we look at both the overall length of cases, and we focus on various points in the life of a case where delay might occur. We have used mixed methods to study these issues: a quantitative analysis of data provided by the Ministry of Justice, an analysis of physical court files, and interviews with lawyers, judges, court staff, and litigants. 

Determining the overall length of a case is a more complex task than it appears on its face, particularly as there are limitations to the data recorded by the Ministry of Justice. Where possible, we have used our analysis of the physical court files to overcome these limitations and evaluate case length. On average, a case filed in the High Court will conclude within 191.5 days. General proceedings, one of the types of civil proceedings heard by the High Court, frequently exceeded the average case length, taking an average of 381 days to conclude. As general proceedings were the longest class of cases and account for 29 per cent of the High Court’s total caseload, the report focuses on this case type. Study participants agreed that most general proceedings should not exceed two years; only 18 per cent of general proceedings exceeded this limit. 

Analysing case length alone, however, cannot answer all questions about delay. Delay can occur in extremely short cases; conversely, for some very long cases the passage of time could not be conceived as delay. In fact, we précised several long cases that had no evidence of delay. These included cases that were ‘parked’ for various reasons: waiting for a related case to be resolved, an appeal to be heard, remedial work to be undertaken, or a settlement negotiated. Some cases just needed more time to be ready for trial, especially cases involving multiple parties, or with complex evidentiary issues. While lengthy, these cases were not necessarily delayed. 

Other cases – long and short – exhibited evidence of delay. Interviews with the participants helped to tease out the nature of this delay. The lack of judicial time to promptly hear fixtures (interlocutory and substantive) and deliver judgments was of particular concern. The unavailability of litigation participants, especially experts, also slows the pace of a case. Errors by registry were also evident; while rare, these errors can delay case progression. Finally, litigation involves a range of participants: litigants, lawyers, witnesses, court staff, and judges. The behaviours of any of these participants in the process can affect pace. For example, litigants, whether represented or unrepresented, can create delay for strategic reasons; lawyers preparing court documents late or to a poor standard can create delay. We canvas the interplay between these litigation participants and consider how these relationships can affect pace. 

When considering solutions to the causes of delay the fundamental purposes of the court must be kept to the fore: to secure just outcomes between parties, publicly state the law, reinforce norms, and limit executive power. The court is a complex organisation. There are many participants who each respond to their own pressures and incentives. Any solutions must take into account this complexity. Proposed reforms should be carefully considered and approached cautiously. 

Before firm recommendations can be made, further analysis of this data is required. A number of possibilities, however, have emerged at this preliminary stage. Many of these reforms centre on the case management process, including: earlier identification of issues in dispute, greater inclusion of litigants earlier in the process, improving the timing and methods of eliciting witness evidence, considering judicial specialisation, and setting firm timetables. Another key area for further research is initiatives to lower or better plan the cost of legal representation, which has a close but complex relationship with the pace of litigation. Other possible reforms focus on the court’s broader operations, including: protecting judgment writing time, and maximising the advantages that can be harnessed from modern technology. There is an urgent need to improve data about who uses our courts, whether or not they are represented, and how their cases proceed. Without this information, we are unable to design a civil justice system that responds to the needs of those using the court and that protects its important public function.

Analytical Jurisprudence

'Gender and the Analytical Jurisprudential Mind' (Oxford Legal Studies Research Paper No. 46/2015) by Leslie Green asks 

Why does contemporary jurisprudence have so little to say about law and gender? I think that is because gender is not relevant to theories of the nature of law. Joanne Conaghan disagrees. She says the methods of analytic philosophy screen out gender by abstracting concepts from social contexts, smuggling in hidden values, and ignoring empirical evidence. My own work on the law of marriage is said to exemplify this. But Conaghan is comprehensively mistaken in her diagnosis. She misunderstands analytic jurisprudence, misunderstands the relation between sex and gender, and misunderstands the role of social facts in legal philosophy. Feminist legal theory is made poorer if it accepts the caricature she offers. Legal scholars should be more open to the contributions of analytic philosophy to feminist inquiry.

Green writes

What can feminism contribute to the study of law? A lot. It can help us understand what it is for women to be disadvantaged in law, the varied ways that happens, and the remedies that might be feasible. What can feminism contribute to the study of jurisprudence? This is trickier. Of course, if ‘jurisprudence means law — for instance, case law or general principles of law — then we already have our answer. But what if jurisprudence means the philosophy of law and, in particular, the philosophy of law in the analytic style familiar throughout the Anglophone world and, now, in many other places as well?

There is good feminist writing in the normative branches of jurisprudence that overlap moral and political philosophy. We know what (some) feminists say about the importance of relationships in morality, or about pornography and free speech, or about the connection between domestic equality and political justice. There is no harmony on such issues, but we do have an idea of what a feminist position might look like. When we turn to general questions about the nature of law, however, the very idea of a feminist approach is puzzling. What is a feminist line on whether law contains power conferring rules? What should feminists think about the identity of legal systems over time? What counts as a feminist view on the possibility of vicious legal systems? With respect to such issues no feminist positions come to mind. I think the explanation for that is straightforward. A central feature of feminist theory is attention to gender, and gender is not relevant to any of these problems.

By ‘not relevant’ I mean that no position about gender relations makes any answer to these questions more or less plausible. Suppose you are wondering whether, as Hans Kelsen thought, what appear to be power conferring rules in the law are best seen as fragments of duty imposing rules. No view about gender — what constitutes it, what its social importance is, how it shapes people’s lives — is going to tilt the answer in favour of or against Kelsen’s thesis. By way of contrast, suppose you are wondering whether, as John Rawls thought, the domain of justice is the ‘basic structure’ of a society. Given what we know about the gendered division of power and labour within families, the plausibility of that thesis turns on whether and how the idea of the ‘basic structure’ treats the family. So gender is highly relevant to theories of justice. That is why there are feminist theories of justice but no feminist theories of legal rules. The same goes for most other problems in general jurisprudence: there are no feminist theories of the sources of law, no feminist theories of the existence conditions for legal systems, no feminist theories of the identity of legal systems, no feminist theories of the normativity of law, and so on. We no more expect to see feminist theories in general jurisprudence then we expect to see feminist theories of vagueness or feminist interpretations of quantum mechanics. The reason jurisprudence says so little about gender is that gender is not relevant there.

Or so it seems to me. But in a survey of issues about law and gender, Joanne Conaghan offers a very different diagnosis. She thinks that legal theorists working in general jurisprudence do not say much about gender because they fail to make room for it. Conaghan holds gender to be pervasively relevant, not only to law — no one denies that — but throughout legal philosophy. Things seem otherwise only because men have stacked the deck: ‘the concept of law (to invoke the title of Hart’s famous work) has been endlessly interrogated in terms which do not admit the relevance of gender.’(6) Conaghan offers no direct argument in support of that claim. She does not identify a single ‘interrogation’ of the concept of law that excludes gender where gender is plausibly relevant.

Her case is diffuse and indirect. She sharply criticizes some of my own work in which she detects an ethos that is, she claims, the sort of ethos that conceals the relevance of gender to jurisprudence.   Now, since the work she criticizes is focused on conceptual issues about sex, gender, and marriage, and since it is not work in general jurisprudence, one might wonder how it could serve as evidence for her charge. How could a work treating gender not admit the relevance of gender? How could a work about one local problem in special jurisprudence — the nature of marriage in common law — reveal anything about the relevance of gender to the concept of law? Conaghan’s answer is that it offers ‘a rare glimpse into how sex/gender is conceived in the analytical jurisprudential mind’. (169) She says that glimpse reveals the general ‘methodological limitations which characterize [such] jurisprudential analysis,’ namely:

the abstraction of legal concepts from the framework in which they operate and the tendency to treat them as having a fairly fixed content over time and space; the unarticulated normative prioritization of some features... over others..., evidencing the presence of evaluative choices which problematize any claim to be rendering a descriptive or value neutral account; the overlooking, or at least unexplained disregard, of contra indicative evidence.... (176)

If we would free legal philosophy from this sort of mindset exhibited in my work and allow for the historicity of concepts, if we would prioritize the right features of law and acknowledge we are doing that, if we would play closer attention to empirical evidence, we would find that gender is important to jurisprudence in ways that the ‘analytical jurisprudential mind’ cannot begin to acknowledge. Gender is absent from general jurisprudence, on Conaghan’s view, not because it is irrelevant to it, but because the methods of analytic philosophy screen it out.

If her diagnosis were correct, then to say that analytical jurisprudence has ‘methodological limitations would be an understatement. It would be a failure: (1) To suppose that legal concepts are unchanging flies in the face of the obvious; the law changes and so do some legal concepts. (2) To think we can describe anything without prioritizing some of its features is to misunderstand the nature of description. (3) To overlook or disregard relevant evidence is incompetence or dishonesty. If that is the mess analytical jurisprudence makes of things, I think we would be lucky if its discussions of sex and gender were, as Conaghan thinks, ‘rare’. Unsurprisingly, perhaps, I do not accept that I have blundered in these ways and I shall explain why not. One might doubt whether self defence could be enough to get the whole ‘analytical jurisprudential mind’ off the hook. Perhaps I am not prone to these vices but everyone else is: maybe I escaped a bad upbringing. As we shall see, however, Conaghan’s errors are of a general kind, not only false readings and misattributions, but misunderstandings of analytic jurisprudence. Were they to take hold they would be damaging to the development of feminist legal theory.

Judicial writing

From Samuel B Kent's infamous judgment in Bradshaw v Unity Marine (147 F.Supp.2d 668, 2001 A.M.C. 2358) -

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact -- complete with hats, handshakes and cryptic words -- to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins. ...

Defendant begins the descent into Alice's Wonderland by submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims. See Gonzales v. Wyatt, 157 F.3d 1016, 1021 n. 1 (5th Cir.1998). That is all well and good -- the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court's water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie. Finally, Defendant does not even provide a cite to its desired Texas limitation statute. [FN2] A more bumbling approach is difficult to conceive -- but wait folks, There's More! ...

The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). And though the Court often gives great heed to dicta from courts as far flung as those of Manitoba, it finds this case unpersuasive. There is nothing in Plaintiff's cited case about ingress or egress between a vessel and a dock, although counsel must have been thinking that Mr. Liddy must have had both ingress and egress from the cruise ship at some docking facility, before uttering his fateful words. ...

Despite the continued shortcomings of Plaintiff's supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon -- Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff's briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.

Now, alas, the Court must return to grownup land. As vaguely alluded to by the parties, the issue in this case turns upon which law -- state or maritime -- applies to each of Plaintiff's potential claims versus Defendant Phillips. And despite Plaintiff's and Defendant's joint, heroic efforts to obscure it, the answer to this question is readily ascertained. ....

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant's Motion for Summary Judgment is GRANTED.

At this juncture, Plaintiff retains, albeit seemingly to his befuddlement and/or consternation, a maritime law cause of action versus his alleged Jones Act employer, Defendant Unity Marine Corporation, Inc. However, it is well known around these parts that Unity Marine's lawyer is equally likable and has been writing crisply in ink since the second grade. Some old-timers even spin yarns of an ability to type. The Court cannot speak to the veracity of such loose talk, but out of caution, the Court suggests that Plaintiff's lovable counsel had best upgrade to a nice shiny No. 2 pencil or at least sharpen what's left of the stubs of his crayons for what remains of this heart-stopping, spine-tingling action. [FN4] 

FN 4 reads

In either case, the Court cautions Plaintiff's counsel not to run with a sharpened writing utensil in hand -- he could put his eye out.

Colourful, but not a model for Australian litigators and decisionmakers.

Legal Realism

'Legal Realism as Theory of Law' by Michael Steven Green in (2005) 46 William and Mary Law Review 1915-2000 comments that

Most philosophers of law, following H.L.A. Hart, believe that the legal realists' rule-skepticism is not a coherent theory of law. Even Brian Leiter, who seeks to defend the realists against Hart, agrees that rule-skepticism fails as a theory of law. Indeed, an essential part of Leiter's rehabilitation of the realists is his argument that they did not mean to offer a theory of law at all. This article is a defense of the realists' rule-skepticism as a theory of law. The heart of my argument is that their rule-skepticism was actually an attack, common among philosophical anarchists, on the ability of the law to provide citizens (and particularly judges adjudicating cases) with objective reasons for obedience. Seen in this light, the realists' seemingly absurd claims that legal rules do not exist start making a good deal of sense. 

 Green argues that

The legal realist movement flourished back in the 1920s and 30s, primarily at Yale and Columbia law schools and at Johns Hopkins’s short-lived Institute of Law. And yet it is often said—indeed so often said that it has become a cliché to call it a “cliché” — that we are all realists now. The cliché is wrong, however, for there is at least one identifiable (if not sizable) group that rejects realism — philosophers of law. To them, realism is dead, mercifully put to rest by H.L.A. Hart’s decisive critique of “rule-skepticism” in the seventh chapter of The Concept of Law. 

Hart rejected two forms of rule-skepticism advocated by the realists. It was, on the one hand, a theory of law—the view “that talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them ….” Hart’s argument here was brief, for he thought that this form of rule-skepticism was an obvious failure. Decisions cannot be all there is to the law, for courts deciding cases are guided by the law — by the legal rules that can be found in constitutions, statutes, regulations and past judicial opinions. The philosophical community agreed. The realists’ theory of law was, in the philosophers’ words, “deeply implausible,” “open to easy refutation,” and “a jurisprudential joke.” 

Hart took rule-skepticism as a theory of adjudication a bit more seriously. According to this theory, statutes and the like may be law, but they are too indeterminate to be significant influences on, or predictors of, judges’ decisions. Because the law is indeterminate, judges actually decide cases on the basis of nonlegal considerations. Hart did not argue that this theory was incoherent, but he did think it was a “great exaggeration.” The law is indeterminate at the margins, he argued—it has what he called “open texture”— but it is not indeterminate in its core as the realists claimed. 

The seventh chapter of The Concept of Law has cast such a long shadow that only recently has the study of legal realism become halfway respectable in philosophical circles. A prominent example of the renewed interest in the realists is Brian Leiter’s defense of their theory of adjudication against Hart’s critique. But Leiter, like the rest of the philosophers, has nothing good to say about their theory of law; indeed, part of his strategy for rehabilitating the realists is insisting that they did not mean to offer rule-skepticism as a theory of law in the first place. 

I will find little to criticize in Leiter’s defense of the realists’ theory of adjudication. But Hart was clearly right about the realists’ desire to present rule-skepticism as a genuine theory of law. If the realists are to be rehabilitated, we must defend this theory. That is the goal of this Article. 

I will defend the realists’ theory of law, however, only in the sense of showing that it is plausible, not that it is beyond criticism. A number of weaknesses, inconsistencies, and oddities will remain. But the theory is not the absurdity that the philosophical community has made it out to be. 

Admittedly, it is dangerous to speak of a theory held by the realists as a group, even when the group is limited to those most commonly agreed to be realists — Karl Llewellyn, Jerome Frank, Walter Wheeler Cook, Felix Cohen, Hessel Yntema, Herman Oliphant, Max Radin, Leon Green, and Joseph Hutcheson. It is still more dangerous when the theory is in the philosophy of law, given that the realists — Cohen excepted — did not have significant training in philosophy. Nevertheless, realism remains a subject of more than historical interest precisely because unifying themes can be found in the realists’ writings. And some of the most important themes are philosophical. The fact that most of the realists lacked philosophical training does not mean they lacked philosophical opinions. All it means is that these opinions were expressed imperfectly in their works, making some philosophical reconstruc- tion necessary. 

As a part of this philosophical reconstruction, I will argue that the realists actually held a number of theories of law that differ in their degree of plausibility. Both the realists and their critics tend to treat these theories as if they were equivalent. Hart, for example, describes the realists’ theory of law as the view that “talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them.” But there are at least two theories of law in this description. The first is the idea that “talk of rules is a myth.” Surprisingly, the realists’ rejection of legal rules is their most defensible theory of law, and it will be the focus of this Article. Properly understood, however, it does not deny that statutes and the like can be law; nor does it deny that these laws can guide a judge’s decision making when the judge’s attitudes recommend conformity with the law. Instead, the theory rejects the ability of the law to provide reasons for conformity with what the law recommends that exist independently of the judge’s attitudes. The realists’ rejection of legal rules was an attack on the idea of political obligation and the duty to obey the law. A statute can be the law without being a legal rule in the relevant sense, for its status as law may not provide a rebellious judge with any reason to adjudicate as the statute instructs. 

But the realists were also committed to a less plausible theory of law—the famous prediction theory that they borrowed from Holmes. This theory is captured by the second part of Hart’s description, that “law consists simply of the decisions of courts and the prediction of them,” and it does indeed cast doubt on the idea that statutes and the like can be law. Properly understood, however, even this theory (or rather theories, for the prediction theory took two forms in the realists’ writings) was not quite as crazy as the philosophers make it out to be. What is more important, even though the prediction theories ultimately fail, they are at least understandable when seen in the light of the realists’ rejection of legal rules. The realists thought—wrongly but reasonably—that these theories followed from the law’s inability to provide reasons for obedience. 

I will begin in Part I by clarifying the various theories of law that I will attribute to the realists, in addition to criticizing Leiter’s argument that they did not mean to offer a novel theory of law at all. In Part II, I will set the stage for my defense of the realists’ first theory of law — their rejection of legal rules — by briefly outlining the problems that Hart and his followers have encountered arguing for the normativity of law. Hart and the realists began from a very similar premise—that the law is fundamentally a matter of social facts. But Hart believed that this does not preclude the law’s capacity to provide reasons for action. Hart’s position has been persuasively criticized, however—most notably by Ronald Dworkin. In Parts III and IV, I will describe the two arguments that led the realists to think that the law is non-normative, the second of which has strong similarities to Dworkin’s critique of Hart. I will end the Article, in Part V, with a discussion of why the realists were inclined toward prediction theories of law. Although I agree with the philosophers that the theories should be rejected, when seen in the light of the realists’ rejection of legal rules they are more plausible than has been assumed.

Positivism in the sky

'The Positive Foundations of Formalism: False Necessity and American Legal Realism' by Lawrence Solum in (2014) 127(8) Harvard Law Review 2464 explores

the relationship between claims that judging is inherently political or ideological and contemporary studies of judicial behavior. These themes are developed in the context of a review of The Behavior of Federal Judges by Lee Epstein, William M. Landes, and Richard Posner.

In this review, I begin in Part I with the book’s core, situating Behavior of Federal Judges’ empirical findings in the context of the evolution of the attitudinal model and the emergence of empirical studies of judicial behavior that emphasize the role of law as an important causal factor.

Part II is about microfoundations. Behavior of Federal Judges offers a rational choice account theory of the causal mechanisms that determine judicial behavior in the form of a labor economics model—judges are viewed as agents of a diffuse principal whose preferences range over their income and the satisfactions obtained from the various ways in which they spend their time.

In Part III, the review then takes a step back from the details of Behavior of Federal Judges’ empirical and theoretical account and engages the fundamental issues at stake—the questions raised by the debate between formalists and realists. Behavior presents itself as a purely positive account: “Ours is strictly a positive analysis. We do not ask how judges should decide cases but how they do decide them—more broadly, how they do their judicial work (which is not limited to casting votes in cases).” (pp. 5-6)

Implicitly, Behavior assumes that the empirical findings and rational choice models show that judging is an inherently realist enterprise—not only does ideology partially determine judicial behavior, it does so necessarily. But this assumption is undermined by Behavior’s empirical findings. In fact, Epstein, Landes, and Posner provide strong evidence that that these claims (that judging must be political) involve false necessity. Putting this same point positively, Behavior provides evidence that legal formalism is possible—inside the feasible choice set and not mere “pie in the sky.”

Solum comments

The great debate over formalism and realism has a tortuous history. It was the jurisprudential debate of twentieth-century American legal theory, and it continues, rehashing old moves, relabeling old positions, and — this is the hopeful bit — exhibiting new, surprising, and productive developments. One of those productive developments has been the turn to rigorous methods in positive legal theory. Contemporary legal theory is increasingly influenced by methods and ideas imported from the social sciences — a development that is part of a larger trend in the legal academy: interdisciplinarity. Some of this story is old hat by now. Law and economics1 and the law and society movement entered the legal academy long ago. Other parts of the story are new. Today, interdisciplinary approaches to legal theory include the transplantation of empirical methods for the study of judicial behavior from political science, the application of the game-theoretic models developed under the rubric of positive political theory (PPT) to the strategic interactions among judges and between judges and the political actors who select them and react to their decisions, and the nascent emergence of experimental jurisprudence (or “X-Jur”), which applies experimental techniques developed in psychology and cognitive science to the problems of legal theory.

One of the most promising trends has been the gradual erosion of the wall of acoustic separation that insulated lawyers, judges, and legal scholars from the rich body of empirical work on judicial behavior developed by political scientists, represented by the so-called “attitudinal model,” pioneered by Professor C. Herman Pritchett7 and famously associated with the work of Professors Harold Spaeth and Jeffrey Segal, among many others. The core idea of the attitudinal model is that ideology (and not the law) is the most important determinant of judicial behavior. The rise of the attitudinal model in political science was anticipated and influenced by the American legal realists, a loosely defined group of judges, lawyers, and scholars, who marked the difference between the “law in action” and the “law in books” and formulated early versions of what is now called “the indeterminacy thesis” associated with the critical legal studies (CLS) movement. Like the attitudinalists in political science, critical scholars who embraced the indeterminacy thesis contended that politics, not law, is the primary determinant of judicial behavior.

But attitudinalism and PPT in political science and CLS in law were not the only heirs of realist skepticism about the determinacy of law. Judge Richard Posner’s influential 1993 article, 'What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)', proposed a model of judicial behavior that viewed judges as rational maximizers, whose decisions are explained by a utility function that included leisure time and pecuniary income. Posner’s model eliminated ideology as a direct consideration in judicial decisionmaking: “My approach downplays the ‘power trip’ aspect of judging, the focus of most of the few previous efforts to model the judicial utility function. In fact, I assume that trying to change the world plays no role in that function.” And law itself played no role in Posner’s model. His skepticism about the role of law in legal decisionmaking is further illuminated by his essay for the one hundredth anniversary issue of the Harvard Law Review, in which he argued that legal theory had failed to develop tools for the interpretation of legal texts, with the consequence that statutory interpretation (and by implication, the interpretation of constitutions, rules, regulations, and even judicial opinions) is indeterminate. Posner later wove the various strands of his thought into the tapestry he calls “pragmatism,” articulated most fully in his magnum opus, How Judges Think.

Posner assumed that policy preferences play “no role” in the determination of judicial behavior, but his economic approach to judicial behavior was nonetheless in the rational choice tradition: rational choice theories explain judicial behavior on the basis of the preferences of individual judges. In political science, the rational choice paradigm was combined with game theory in what is called “positive political theory.” Unlike the attitudinal model (which predicts the behavior of an individual judge based only on that judge’s preferences), PPT models of judicial behavior take strategic interactions between judges into account. For example, the behavior of a Supreme Court Justice is not just a function of the policy preferences (or ideology) of the individual Justice in isolation. The Justices must take the preferences of their colleagues into account; only by modifying their positions can they get five votes and thereby shape the content of the law.

PPT approaches to judicial behavior frequently employ “pivotal politics” models, originally developed in the context of modeling legislative behavior. According to these models, in the House of Representatives, the member whose ideological views are at the median (with equal numbers of colleagues to the left and the right) is the “pivot,” the member whose vote will determine whether bills brought to the floor will pass or fail. On a collegial court like the Supreme Court, we call the vote of the pivotal Justice the “swing vote” — in cases where the swing vote will determine the outcome, the opinion writer must write an opinion that will attract the vote of the pivotal Justice to form a majority. Pivotal politics models identify these key players, the “pivots” whose preferences define which outcomes are possible (assuming, of course, that the models are confirmed). While Posner’s model assumed that policy preferences play almost no role in shaping judicial behavior, PPT models assume the opposite — that policy preferences are the driving engine of judicial behavior.

On the surface, it might seem that progressives from the 1930s, radical legal scholars from the 1980s, a conservative federal judge, and (supposedly) value-neutral social scientists have little in common. But there is a common thread. As Judge Harry Edwards and Professor Michael Livermore put it: “The theories underlying the attitudinal model, legal realism, critical legal studies, and pragmatic adjudication share the view that the law generally does not constrain judges in their decisionmaking because it does not provide clear answers.” This shared view or common assumption can be expressed as the “indeterminacy thesis,” the key realist move in the grand debate with formalism.

Enter The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (or Behavior of Federal Judges for short or Behavior for really short), a magisterial and important book, coauthored by Lee Epstein, who was trained as a political scientist and who is currently appointed in law and political science at the University of Southern California; William Landes, trained as an economist and currently on the faculty at the University of Chicago Law School; and Richard Posner, trained as a lawyer and currently a judge on the United States Court of Appeals for the Seventh Circuit. Although the subtitle of Epstein, Landes, and Posner’s book is A Theoretical and Empirical Study of Rational Choice, the emphasis is decidedly on the empirical — with theory getting the short shrift. Chapters two through eight, which consume 320 of the 422 pages or about 75% of the total, summarize the literature on judicial behavior and present important new empirical findings. Theory (with a corresponding economic model) appears in chapter one, entitled “A Realistic Theory of Judicial Behavior,” which presents an updated version of Posner’s 1993 model of judicial behavior, now recast as a labor economics model (pp. 25, 48) and self-described as a summary of Posner’s How Judges Think (p. 25).

NSW Crim Law Appeals

The NSW Attorney-General has released the 328 page report [PDF] by the NSW Law Reform Commission regarding Criminal Appeals.

The Commission was asked to review the avenues of appeal in all criminal matters, with a view to simplifying and streamlining appeal provisions and consolidating them into a single Act.

Two principal Acts govern criminal appeals in NSW: the Criminal Appeal Act 1912 (NSW) (CAA, typically appeals from the higher courts to the Court of Criminal Appeal) and the Crimes (Appeal and Review) Act 2001 (NSW) (CARA, appeals from the Local Court), with judicial review  also available in some criminal proceedings under the Supreme Court Act 1970 (NSW) (SCA).

The report notes that

the limits of each Act are not well defined, and in some cases there is overlap. The CCA sits at the top of the criminal appeals hierarchy in NSW, although anomalously some criminal appeals currently lie to the Court of Appeal.

Criminal appeal provisions have been amended over the last century in a piecemeal manner, without fundamental review. This has resulted in a criminal appeals system which is at times complicated, inconsistent and outdated. We aim to update, simplify and streamline the criminal appeal provisions where possible.

The Commission recommends establishment of  a new Criminal Appeal Act -

Having two separate Acts creates a criminal appeals framework that is disjointed and complicated. Consolidating the CAA and CARA into a single Act will improve efficiency, clarity and accessibility. We recommend that the CAA and CARA be abolished and replaced with a single, new Criminal Appeal Act. (Recommendation 4.1)

Two aims of our terms of reference are to simplify and streamline appeal processes. To this end, we considered whether the criminal appeal provisions could be consistent across all courts in NSW. Ultimately, however, we have concluded that the differences between the courts mean that separate regimes of appeal remain practically unavoidable.

The CCA is constituted under the CAA. In contrast, the Court of Appeal and the Divisions of the Supreme Court are provided for under the SCA. This difference seems to be an historical anomaly. We recommend that the CCA be recognised in the SCA as a part of the Supreme Court. (Recommendation 4.2)

Judicial review from decisions in criminal matters currently lies to the Court of Appeal. Although this may be because the CCA is not formally a part of the Supreme Court, it means that both the CCA and the Court of Appeal have jurisdiction over criminal matters. If the CCA becomes a part of the Supreme Court, we also recommend that it should be assigned to hear judicial review applications arising out of criminal proceedings. (Recommendation 4.3)

The report discusses  appeals from the Local Court to the District Court

A conviction or sentence imposed in the Local Court may be appealed to the District Court. Only a small proportion of Local Court convictions and sentences are appealed, although in sentence appeals the success rate is quite high – on average about 60%.

The provision for conviction appeals works well and we do not recommend any change. However, sentence appeals are problematic in that the District Court exercises the sentencing discretion afresh, and may impose a different sentence on appeal even if the original sentence was within the range of acceptable options. It also does not usually have access to the Local Court’s remarks on sentence or any exchange between the magistrate and the bar table, and does not know why the Local Court chose a particular sentence over others.

In our view the current basis for determining sentence appeals does not assist with clarity or consistency in sentencing practice, or in promoting finality in criminal proceedings.

Ideally sentence appeals from the Local Court to the District Court should require error in order to succeed. However, the less formal nature of proceedings in the Local Court – necessary due to the high volume of cases and time pressures – means that an error based appeal is likely to be impractical. We instead recommend that appeals against sentence be by way of rehearing, on the basis of the material that was before the Local Court and the reasons of the magistrate. Fresh evidence should only be given by leave where it is in the interests of justice. (Recommendation 5.1)

The resources required for transcript production are a significant constraint in the hearing of appeals from the Local Court. We recommend that the Department of Attorney General and Justice investigate alternatives to the production of typed transcript in these appeals. (Recommendation 5.1)

In an appeal from the Local Court, the District Court judge may state a case on a question of law to the CCA. The case stated is an outdated and cumbersome method of reviewing a matter. We recommend that it be abolished and replaced with an avenue of appeal with leave on a ground involving a question of law. (Recommendation 5.2)

In relation to  appeals from the Local Court to the Supreme Court the Commission notes that

Appeal also lies to the Supreme Court from certain Local Court decisions. Although there are few such appeals, they play an important role in allowing the Supreme Court to determine questions of law authoritatively.

We recommend that the current avenues of appeal to the Supreme Court be retained, except that the ability to appeal against conviction or sentence on a question of fact or mixed fact and law should be removed. An appeal to the District Court can adequately deal with these factual questions. (Recommendation 6.1)

Where the Supreme Court hears an appeal from the Local Court, a further appeal lies to the Court of Appeal with leave. We recommend that this be abolished and replaced with an avenue of appeal to the CCA. (Recommendation 6.2) The CCA should have jurisdiction over all criminal appeals. Appeals from the Local Court – other issues (Chapter 7)

The Local Court, on application by either the prosecutor or defendant, can annul a conviction or sentence. We make some recommendations to increase the flexibility of this power, while at the same time balancing the need for finality. (Recommendations 7.1, 7.2, 7.3 and 7.4)

There is an established requirement in case law that a Parker direction must be given where a District Court judge is contemplating increasing a defendant’s sentence on appeal. We recommend including the requirement for a Parker direction in legislation. (Recommendation 7.5)

The District Court has limited powers in an appeal against conviction, and this has caused some problems in practice. We recommend that it be given some additional powers. (Recommendation 7.6)

A defendant cannot appeal to the District Court more than 3 months after the conviction or sentence. This can cause injustice, and we recommend that the District Court be able to grant leave to file an appeal more than 3 months after the conviction or sentence where exceptional circumstances are made out. We also recommend consistent time limits for appeals by defendants and the Director of Public Prosecutions (DPP). (Recommendation 7.7) The time limit for appealing to the Supreme Court is currently contained in procedural rules. We recommend it be moved into legislation. (Recommendation 7.8)

Where a forensic procedures order under the Crimes (Forensic Procedures) Act 2000 (NSW) is made, the order may be appealed to the Supreme Court as if it were a sentence. This is inconsistent with the avenues of appeal given to other decisions of the Local Court. We recommend that a forensic procedures order be subject to the same avenues of appeal and review as a conviction. (Recommendation 7.12)

There are no comprehensive procedural rules that apply to criminal appeals from the Local Court to the Supreme Court. This results in a gap in procedure, and criminal appeals have sometimes been treated as being subject to the Uniform Civil  Procedure Rules 2005 (NSW). We recommend that specific procedural rules, forms and fees be developed. (Recommendation 7.13)

We also recommend that particular provisions be clarified, including the award of costs, the effect of a sentence pending appeal and the power to deal with a good behaviour bond imposed on appeal. (Recommendations 7.9, 7.10, 7.11, 7.14 and 7.15)

In relation to appeals from conviction and sentence on indictment the Commission comments

 The grounds for an appeal against conviction on indictment have remained unchanged since their introduction in 1912. The wording of the provision is antiquated and its structure is unwieldy. The provision uses an outdated drafting style that is difficult to follow and apply. Judicial interpretation has not comprehensively clarified how the three grounds of appeal and the accompanying proviso should be applied. We conclude that there is scope for improving the provision.

Stakeholders agreed that the grounds for appeal against conviction should be reformed. We developed seven different options for reform, based on alternatives in other jurisdictions and suggestions arising from our consultations. These options were put to stakeholders.

We recommend a new formulation for the grounds of appeal against conviction. (Recommendation 8.1) Having considered the wide range of options, we recommend a formulation of the grounds for appeal against conviction that adopts the best features of those models with the most stakeholder support, and that provides a simple and clear framework.

In appeals against sentence for proceedings on indictment by the defendant and the Crown, the CCA is given a broad discretion in the legislation to impose any different sentence it thinks fit. However, the case law establishes that an error or miscarriage of justice must be demonstrated before the appeal can succeed.

We recommend retaining the current legislative provisions. (Recommendations 8.2 and 8.3) Stakeholders did not support codifying the case law as it risks constraining the discretion of the CCA and inadvertently restricting the grounds of appeal.

In discussing appeals from acquittal and similar orders the Commission recommends that where a defendant is acquitted in a judge alone trial for proceedings on indictment, the appeal should be available on questions of both law and fact, not just on a question of law. (Recommendation 9.1)

 In a judge alone trial the judge is required to give reasons, which include the findings of fact relied upon – something not available in a jury trial. Factual and legal errors can be discerned from the judge’s reasons. We expect this avenue of appeal will be rarely used. However, where there is a clearly identifiable error, community confidence in the criminal justice system is better served by having a method to  review and correct those errors. Consistent with this policy position the appeal should be decided on the ground that there was an error of law or fact that was material to the outcome. (Recommendation 9.1)

We recommend, by majority, that this expanded basis of appeal be available only where the offence for which the defendant was acquitted is punishable by 15 years imprisonment or more. (Recommendation 9.1) This is consistent with the threshold that applies to an order for a retrial under CARA where there has been a “tainted acquittal”.

We recommend expanding the avenue of appeal from an acquittal in the summary jurisdiction of the higher courts. (Recommendations 9.2 and 9.3)

No appeal lies from a decision of a judge to accept a plea in bar – a plea that the defendant has been convicted or acquitted of the same offence. The acceptance of the plea operates to discharge the defendant. We recommend that the DPP be able to appeal the acceptance of a plea in bar to the CCA. (Recommendation 9.4)

A person found not guilty by reason of mental illness may only appeal that verdict where he or she did not set up the defence. We reiterate the recommendations made in Report 138 that an appeal should be available regardless of who set up the defence. We also recommend that where a defendant is acquitted at a special hearing, the same avenues of appeal for an acquittal in an ordinary trial for proceedings dealt with on indictment should apply. (Recommendation 9.5)

Regarding other aspects of  appeals from higher courts the Commission indicates that

The legislation does not specify the basis on which a conviction or sentence appeal from the summary jurisdiction of the higher courts is to be decided. The CCA has held that these appeals should be decided the same way as appeals from proceedings dealt with on indictment. For clarity, we recommend including this basis in legislation. (Recommendation 10.1)

Most defendant appeals to the CCA require leave. In a conviction appeal, whether or not leave is required depends on whether the ground raises a question of law alone, a difficult classification. For simplicity, and to give the CCA greater control over the cases that come before it, we recommend that all appeals to the CCA should require leave. (Recommendation 10.2) We also recommend repealing r 4 of the Criminal Appeal Rules (NSW) and including its substance in legislation as one factor the CCA must consider in deciding whether to grant leave. (Recommendation 10.3). The ability for the trial judge to certify that a matter is appropriate for appeal is unnecessary and should be abolished. (Recommendation 10.4)

We recommend shortening the time limit for filing a notice of appeal with the CCA from 6 months to 4 months, in order to better serve the interests of finality. We also recommend that the Chief Justice develop a practice note for granting extensions of the notice of intention to appeal. Extensions of time are sometimes sought due to delays in obtaining transcripts and other material from the trial court, and we recommend that the head of each jurisdiction conduct a review of the processes for the release of this material. (Recommendation 10.5) For consistency we recommend that, except in certain cases, prosecution appeals be subject to the same time limits as those that apply to defendants. (Recommendation 10.6)

In certain proceedings the trial judge may submit a question of law arising during or after the hearing for determination by the CCA .The current avenues of appeal and our recommendations for change make this power unnecessary. We recommend that it be repealed. (Recommendation 10.9)

We also recommend clarifying and updating other parts of the appeals process, including the powers of the CCA following disposal of a conviction appeal, costs, supplemental powers and the effect of time spent on release pending a sentence appeal. (Recommendations 10.7, 10.8, 10.10, 10.11, 10.12 and 10.13)

Dealing with  Interlocutory appeals and appeals from committal proceedings the Commission states that

The current interlocutory appeal rights work well. We recommend retaining them in their current form and expanding them to apply to the summary jurisdiction of all higher courts. (Recommendation 11.1) We also make some recommendations to update and streamline these provisions, including by imposing a time limit and a requirement for leave for all parties. (Recommendations 11.2, 11.3 and 11.4)

There are currently two alternate avenues of appeal from an interlocutory order made in committal proceedings – to the CCA under the CAA, and to a single judge of the Supreme Court under CARA. We consider that dual avenues are unnecessary. We recommend abolishing the appeal to the CCA. (Recommendation 11.5)

In relation to  appeals to and from specialist courts the Commission states

 The Land and Environment Court (LEC) hears appeals from the Local Court relating to environmental offences. Although only a small number of appeals are made to the LEC each year, we recommend retaining this avenue of appeal. (Recommendation 12.1) There are benefits in having a specialist court deal with environmental offences. We recommend some changes to align appeals to the LEC with appeals to the District Court and Supreme Court. (Recommendations 12.2, 12.3 and 12.4)

Appeals relating to environmental offences may be made from the Local Court to the Supreme Court if the threshold for granting leave is met. We recommend this be retained. (Recommendation 12.5) 0.46 The Industrial Relations Commission in Court Session (IRCiCS) hears appeals from the Local Court for certain work health and safety offences. The provisions of CARA will apply. We do not make any specific recommendations for this avenue of appeal.

In an appeal from the Local Court to both the LEC and the IRCiCS, the judge hearing the appeal may state a case on a question of law to the CCA. Similar to our  recommendation for the case stated from the District Court, we recommend abolishing these provisions and replacing them with an avenue of appeal with leave on a ground involving a question of law. (Recommendations 12.6 and 12.10)

The provisions of CARA relating to criminal appeals from the Local Court apply to the Children’s Court. These avenues of appeal work well and we recommend retaining them. (Recommendation 12.7)

Appeals from decisions of the President of the Children’s Court lie to the Supreme Court instead of the District Court. This appears to be because the President must be a judge of the District Court. However, this creates an unnecessary anomaly and means a young person’s right of appeal can be different because the matter happens to be heard by a different judicial officer. We recommend that the President’s decisions be subject to the same avenues of criminal appeal as Children’s Court magistrates. (Recommendation 12.8)

Certain decisions of the Drug Court may be appealed to the CCA. These work well and we recommend that they be retained. (Recommendation 12.9)

Most prosecution appeals may be made only by the DPP or the Attorney General. The Environment Protection Authority (EPA) and the WorkCover Authority of NSW are specialist prosecutors. We recommend that they have the same criminal appeal rights as the DPP where they prosecuted the original proceedings. We also recommend that the EPA be given appeal rights for environmental offences where the original proceedings were prosecuted by or on behalf of a public authority. (Recommendation 12.11)

Highlighting other areas for reform the Commission notes

The Criminal Appeal Rules (NSW) apply to appeals to the CCA, and the Supreme Court Rules 1970 (NSW) govern criminal appeals from the Local Court to the Supreme Court. There is no clear rationale for having separate sets of rules. We recommend that the Supreme Court Rules Committee conduct a review of these rules with a view to consolidating and updating them. (Recommendation 13.1)

The Supreme Court Rules Committee makes rules for a number of different types of proceedings. We recommend that consideration be given to ensuring that criminal law expertise is available to the Committee when making criminal appeal rules. (Recommendation 13.1)

In criminal appeals from the Local Court to the Supreme Court it is not uncommon for there to be an application for judicial review in the alternative. However, there are some inconsistencies between the provisions applying to appeals and those that apply to judicial review. We recommend that the Attorney General instigate a review of the provisions of the SCA and other rules relating to judicial review, with a view to harmonising those provisions with similar provisions applying in criminal appeals. (Recommendation 13.2)

Dignity in the US Supreme Court

'The Jurisprudence of Dignity' by Leslie Meltzer Henry in (2011) 160 University of Pennsylvania Law Review 169 comments

Few words play a more central role in modern constitutional law without appearing in the Constitution than "dignity." The term appears in more than nine hundred Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meanings and functions are commonly presupposed but rarely articulated. The result is a cacophony of uses so confusing that some critics argue the word ought to be abandoned altogether.

This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity and then proposing a typology of dignity based on an analysis of how the term is used in those opinions. The study reveals three important findings. First, the Court's reliance on dignity is increasing, and the Roberts Court is accelerating that trend. Second, in con trast to its past use, dignity is now as likely to be invoked by the more conservative Justices on the Court as by their more liberal counterparts. Finally, the study demonstrates that dignity is not one concept, as other scholars have theorized, but rather five related concepts. The typology refers to these conceptions of dignity as institutional status as dignity, equality as dignity, liberty as dignity, personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity  to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual chaos surrounding dignity. It provides tools to track the Court's use of different types of dignity over time. This permits us to detect doctrinally transformative moments, in such areas as state sovereign immunity and abortion jurisprudence, that arise from shifting conceptions of dignity.

Henry states that

Justice William J. Brennan, Jr., frequently emphasized that the fundamental value at the crux of American law is "the constitutional ideal of human dignity."' He believed that the Constitution, and par- ticularly the Bill of Rights, expressed a "bold commitment by a people to the ideal of dignity protected through law."  Perhaps to give doctrinal heft to a word that appears nowhere in the Constitution, Justice Brennan invoked "dignity" in an astounding thirty-nine opinions during his tenure on the Court. Despite the breadth of cases to which he applied the term, Brennan's tireless efforts to advance a legal notion of dignity often were discounted either because the term appeared in his dissenting opinions, or because when dignity appeared in the majority opinions Brennan authored, his opinions represented the "liberal wing" of the Court's jurisprudence.

After a brief period of hibernation during the Burger and Rehnquist Courts, the use of dignity is once again on the rise. The Roberts Court has issued opinions that invoke dignity in thirty-four cases, nearly half of those in the last two Terms alone. We would be mistaken, however, to see this as a reascendance of Justice Brennan's "dignity." To the contrary, dignity is now more likely to appear in majority than in dissenting opinions, and as likely to be invoked by Justice Scalia as by Justice Ginsburg.

Dignity's increasing popularity," however, does not signal agreement about what the term means. Instead, its importance, meaning, and function are commonly presupposed but rarely articulated. As a result, contrasting views about dignity's definition, usefulness, and ultimate purpose have emerged.

For some commentators, dignity is nothing less than "the premier value underlying the last two centuries of moral and political thought," an essential "basis of human rights," and one of "those very great political values that define our constitutional morality." Like Justice Brennan, legal theorist Ronald Dworkin has declared that "the principles of human dignity.., are embodied in the Constitution and are now common ground in America."

Indeed, few concepts dominate modern constitutional jurisprudence more than dignity does without appearing in the Constitution. The Supreme Court has invoked the term in connection with the First, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, Fourteenth, and Fifteenth Amendments.

Other scholars and jurists, however, view dignity as a concept in crisis. Philosopher Ruth Macklin considers dignity "a useless concept" because it does nothing more than offer "vague restatements  ... more precise... notions."  Law and ethics professor John Harris echoes Macklin's concern, pointing out that the word is "universally attractive" because it is "comprehensively vague." Meanwhile, philosopher Helga Kuhse contends that as long as dignity is invoked by people on opposite sides of a debate it is "nothing more than a short-hand expression for people's moral intuitions and feelings."

Despite deep disagreement about its normative, practical, and jurisprudential value, dignity's growing presence in Supreme Court decisions has received scant attention. The literature on dignity is primarily written by philosophers and theologians, who discuss dignity as a moral value divorced from legal application," or by international and comparative law scholars, who examine dignity's role in human rights declarations and in foreign laws. The prominence of dignity in American constitutional law has gone largely unanalyzed. This leaves us without a comprehensive understanding of why the Court has embraced dignity, what types of actions threaten dignity, and how the Court weighs dignity in relation to other values. Most importantly, we lack a systematic account of dignity's varied meanings against which to ponder these questions.

This Article has two related ambitions, both directed at clarifying the conceptual chaos surrounding dignity's complicated usage. The first goal is to provide an approach that captures the range of ways in which the Court invokes dignity. The second is to explore dignity's judicial function in contemporary constitutional jurisprudence. Part I of this Article critiques existing theories of dignity and proposes an alternative, Wittgensteinian approach to conceptualizing the term. Standard accounts contend that dignity is either reducible to another concept, such as autonomy, or has a core meaning that is applicable across all contexts. Although these views are tidy and attractive, they tend to draw dignity's boundaries too narrowly or too broadly.

This Article argues against a positivistic claim to dignity's core meaning and instead contends that dignity has multiple meanings that, in Wittgenstein's words, share "family resemblances" to each other. While some dignitary harms can be completely described by one type of dignity, others admit of complementary meanings. Because this heterodox approach to conceptualizing dignity begins by exploring the use of dignity in practice, rather than in the abstract, it maintains a degree of coherence absent from the standard approaches.

Part II offers a typology of dignity that explores the compendium of pluralistic values that the Court embraces when it speaks of dignity. It provides the results of the first study to examine the use of dignity in every Supreme Court case from the last 220 years in which the word appears in an opinion. This research reveals that while a single concept of dignity with fixed boundaries does not exist, five different conceptions of dignity emerge that, although distinct, admit of some similarities.

Part II proceeds to set forth these conceptions of dignity, which I refer to as institutional status as dignity, equality as dignity, liberty as dignity, personal integrity as dignity, and collective virtue as dignity. I first trace each conception to its epistemic origins in philosophy, theology, or political theory, and articulate its central features. Then, relying on the Court's opinions, I illustrate that each conception of dignity has a particular judicial function oriented toward safeguarding substantive interests against dignitary harm. Teasing out dignity's different threads permits us to see the work that each conception of dignity is performing for the Court. It also demonstrates why viewing dignity as only a "liberal" or "egalitarian" value is cramped and stultifying. In contrast, the typology I propose provides the tools to evaluate what is normatively and doctrinally at stake in a variety of contexts and equips us with a framework for future discussions.

Prejudgment

'Extrajudicial Speech and the Prejudgment Rule: A reply to Bartie and Gava' by Chris Finn in (2014) 34 Adelaide Law Review 267 [PDF] responds to 'Some Problems with Extrajudicial Writing' by Susan Bartie and John Gava in (2012) 34 Sydney Law Review 637.

Finn states that

The precise limits of the rule against prejudgment remain to be determined. It has recently been argued that the rule should be extended to prohibit extrajudicial statements on matters of law, as well as those of fact or evidence at issue in a particular matter. It is argued that this suggestion should be resisted, as neither the existing case law nor underlying principle support such an extension. Moreover, there are strong policy reasons for not doing so. 

He comments that

Susan Bartie and John Gava1 challenge conventional understandings of the apprehended bias rule, and of the prejudgment doctrine in particular. They do so by arguing that this doctrine should be applied more broadly and that, for a variety of policy reasons, its scope should extend to a wide range of extrajudicial speech. Significantly, their argument forces a clearer conceptualisation of the bias rule and the legal values it protects.

Though far from new, extrajudicial commentary is a growing phenomenon. Judges of the superior courts are in increasing demand as conference speakers, often presenting keynote addresses, and a growing number of them have taken to the academic journals as well. Court websites often list lengthy catalogues of papers delivered by serving judges on a wide range of legal subjects to professional and academic audiences. Those papers range in nature from expressions of broad commentary about the legal system and the role of the courts to tightly argued expositions of a clear view as to the correct resolution of some question of specific legal doctrine.

Moreover, judges are increasingly willing to comment on, and express opinions about, ‘hot’ legal issues which are likely to be further argued in the nation’s courts, perhaps even before their judicial selves. Given this context, Bartie and Gava warn against the possibility of a perception of prejudgment. They argue that ‘ordinary human experience’ indicates that a position so clearly and publicly expressed will be difficult for a judicial officer to put to one side when the very same legal issue subsequently falls to be determined in their courtroom.

Bartie and Gava suggest that much, if not all, extrajudicial speech is therefore ‘suspect’ in terms of displaying prejudgment. They counsel a somewhat formalist remedy, a stony faced Sphinx like judicial silence in all fora other than duly delivered judgments. Judges, they seem to be saying, are best seen and not heard outside their courtrooms.

This article takes a different view. A close examination of the case law demonstrates that the prejudgment rule has never extended to extrajudicial statements made about matters of law, as distinct from suggestions that particular questions of fact at issue in litigation in prospect have been predetermined. Moreover, while Bartie and Gava’s suggestion that strong expressions of extrajudicial views on matters of law or matters of fact are equally concerning has some initial appeal, this article argues that there are strong policy reasons for resisting their suggested extension of the bias rule.

Jurisprudence

'Why Jurisprudence Is Not Legal Philosophy' by Roger Cotterrell in (2014) 5(1) Jurisprudence seeks to

describe and defend jurisprudence as an enterprise of theorising about law that is distinct from what is now understood as legal philosophy in the Anglophone world. Jurisprudence must draw on legal philosophy but also from many other resources. It should be an open quest for juristically (rather than philosophically) significant insights about law. Its purpose is to inform and guide the juristic task of making organised social regulation a valuable practice, rooted and effective in the specific contexts and historical conditions in which it exists but also aimed at serving demands for justice and security through regulation, as these perennial values are understood in their time and place, and as they might be further clarified and reconciled as legal ideals.

'Law as Language' by Marianne Constable in (2014) 1(1) Critical Analysis of Law proposes

understanding law as language. Doing so offers an alternative both to jurisprudential accounts of law as a system of rules and to sociological accounts of law as effective (or ineffective) social power. Part II shows how approaching law as language takes doctrine and legal texts seriously, as speech acts of claiming that do things, rather than as nounlike rules or their application. Such an approach recognizes that legal actions or events of claiming are “imperfect” in a grammatical sense: practical knowledge of law is incomplete, continual and interruptible, while legal acts occur more and less well under particular conditions. Understanding law this way, part III shows, also enables one to critique narrow approaches to law as “policy” or as exclusively a problem-solving tool or instrument. The paper not only argues that law may be thought of as language then. It ultimately suggests another law: that we are creatures of language. 

Constable argues

Jurisprudence, legal history, and other humanistic disciplines have over the centuries of- fered a range of insights into the perennial questions of what to do or how best to live, how we know, and who we are. In so doing, philosophy (Plato), rhetoric (Vico), and social theory (Montesquieu), as well as history and literature, have often questioned the justice of law. That they have done so suggests that law has been taken — or has offered itself — as a site of justice or at least as a site in which issues of justice can be addressed. 

Today, as professional law schools turn increasingly to economics and the empiri- cal social sciences to deal with social problems that they would solve through what they call “policy,” the relation of law as policy-making to traditional humanistic accounts of justice and how it is addressed becomes an issue, even as the relevance of the humanities and of humanistic studies to professional legal study is brought into question. The rise of law and economics, combined with the marginalization of critical studies and even social theory in professional law schools in the U.S., means that law seeks to become ever more “rational,” while sociolegal research becomes increasingly bound to the methodological requirements and outcomes of statistical empirical research. Policy-makers today address questions about what to do through problem-solving approaches that rely on economic and statistical methods and frameworks and tacitly foreclose particular sorts of answers — and even questions. 

Some legal scholars still turn explicitly to humanities over social sciences to improve law in a particular way. They sometimes suggest that law “needs” the humanities, that the humanities are the conscience of law, that the humanities can make law — or that humanists can teach law to be — more honest and good. The humanities are not a religion, though. Humanists are not moralists, priests, nor even judges to be turned to for guidance, absolution, or pronouncements of justice. So what do the humanities offer law? 

This paper proposes that if we continue insisting on “the humanities” (itself a question), then the humanities can be said to be characterized by a sensitivity to language, broadly understood, in readings (or interpretations or analyses) of texts and images and other cultural and historical artifacts. The attention paid to language in basic legal education itself suggests that law already belongs in the domain of the humanities. Thinking about law as language need not be identified with a particular field nor even with a set of approaches dubbed “law and humanities,” however. Furthermore, that humanists interpret does not mean that they do not make arguments. Indeed, the argument pursued here is that modern law is fundamentally a matter of language and that there are some things one cannot understand about law if one does not understand language — and the limits of speech. 

This argument challenges the claims of legal philosophers and social scientists that law is fundamentally a matter of coercion or of social power. The point that law is a matter of language is not a return to the privileging of doctrine, however. It also goes beyond simply claiming that to engage in the practice of U.S. or Canadian law at this time, one must have some facility in reading, writing, and speaking the English language. It emphasizes in part what legal practitioners certainly know: that words do a lot of different things that are generally described philosophically as “speech acts.” Practitioners develop, to varying degrees, the skills required to carry out legal acts which, to be successful, must fulfill particular conditions. Legal practitioners also know, as well as humanists, that language, however beloved or despised, is always susceptible to going wrong. As practitioners of language, practitioners of law must become adept at using words and at judging what words say. The imperfections of law correspond at least in part to the imperfections of language. Words promise truth. They ostensibly show us the world as it is. Words can be misspoken, misheard, and misunderstood, though. Words can be inappropriate or misappropriated, deceptive, inaccurate, or wrong, even downright dangerous. So too can law and legal claims. 

The first section (part II) shows how law corresponds with various aspects of language. One distinguishes particular utterances or speech acts from practical knowledge of language. Such knowledge is, in a grammatical sense, “imperfect.” The imperfect names the incomplete, continuous, ongoing, routine, habitual, interruptible aspect of action, as in, “She is running every day, except when it rains” or “We were speaking English when we made the agreement.” The “perfect” refers to a completed act: “She ran” or “It rained” or “We spoke” or “We agreed.” As in language, so too in law, one can distinguish perfected or completed legal acts or events from an “imperfect” or ongoing tradition of background practical knowledge. The second section (part III) shows how the language of modern law reveals in- sights into who we—as problem-solvers—are and what we know, as well as into what we do. Attending to law as language, the paper concludes, may provide entry into fresh ques- tions about the nature of modern law and justice, an issue that far too many contempo- rary philosophers and scholars of law take for granted.

Surveillance Jurisprudence

'Complementing the Surveillance Law Principles of the ECtHR with its Environmental Law Principles: An Integrated Technology Approach to a Human Rights Framework for Surveillance' by Antonella Galetta and Paul De Hert in (2014) 10(1) Utrecht Law Review 55-75 comments

Looking at the case law of the European Court of Human Rights on surveillance, one notices a well maturing set of principles, namely: legality, legitimacy, proportionality (the standard check) and, if the Court is ‘on it’, also necessity and subsidiarity (the closer scrutiny check). In this contribution, we go through the surveillance case law of the Court. We find that: 1) not all surveillance is considered relevant to the right to privacy (the threshold problem); 2) when surveillance is subjected to a privacy right analysis, concerns about rights contained in other provisions, such as Articles 6, 13 and 14 of the Convention, are added; 3) not all surveillance that interferes with privacy is considered as problematic, hence differences in the Court’s view with regard to the legality requirement and the intensity of the scrutiny arise. 

This contribution goes beyond a straightforward analysis of the Court’s surveillance case law. In our second part we turn to Murphy and Ó Cuinn’s research on a ‘new technology’ approach in the Court’s case law and on principles that apply to a wide range of technology-related issues (from surveillance, to biomedicine, to polluting technologies). We focus in particular on the case law of the Court on environmental matters. We find that greater coherence could be reached in the Court’s case law on surveillance by integrating the environmental law principles of participation, precaution, access to information and access to justice in surveillance matters. Nevertheless, such a move would be very desirable and give new momentum to the Court’s case law on surveillance-related interferences.

Atrocity and Judicial Procedure

'The Eichmann Trial – Toward a Jurisprudence of Eyewitness Testimonies of Atrocity?' by Leora Bilsky in (2014) Journal of International Criminal Justice comments that

 The Eichmann judgment was overshadowed for many years by the Nuremberg proceedings that were considered the more important precedent for international criminal law. In this article I question this understanding by positing the Eichmann trial at the head of the chain of international criminal trials we have become more familiar with in the past two decades. 

An essential part of the article turns to the role of witnesses under the framework of 'atrocity jurisprudence'. It departs from previous literature that sharply distinguishes the legal from the historical or didactic role of victim testimony in the trial. In contrast, adopting the framework of collective crimes, the paper investigates the changing role of the victim as witness, which is to throw light on the new crime that is characterized not only by mass murders, but also by the separation - both physical and psychological - of victimizer from his victims. The court gave the witness this new role by juxtaposing the dry Nazi documents discussing best methods and numbers, with the most horrifying stories conveyed by victims and survivors. In this manner, the encounter that could not take place during actual events was recreated in the courtroom. … 

In his famous monograph "Basic Concepts of Criminal Law" George Fletcher describes the judicial development of the law: "[c]ourts proceed by identifying a core image of crime and punishing it. That precedent, then, becomes the paradigm for the offence." In this article, my aim was to show how the court in the Eichmann trial was on a legal mission to depict "a core image" of the relatively new type of criminality - crimes against humanity - by changing the paradigm offered in Nuremberg, one that makes the victims' testimonies relevant to the proof of guilt and integrates them into the trial. The court did so by interpreting the new crimes of genocide and crimes against humanity, by developing a theory regarding modes of liability in collective crimes, and finally by elaborating the role of victims' testimonies in atrocities trials, both expanding their relevance while constraining their didactic uses. Together these three moves offered a novel jurisprudence of atrocity trials, one that sees the humanity of the victims as the core value protected by these crimes. 

The Eichmann judgment has suffered for many years from bad public relations. This article suggests a belated correction by pointing to its potential contribution to international criminal law – an attempt to develop a new jurisprudence of atrocity trials that attempts to confer legal recognition and importance to the testimony of the individual victim in the trial of the perpetrator.

Ethics

'Moral Autonomy in Australian Legislation and Military Doctrine' by Richard Adams in (2013) 6(3) Ethics & Global Politics 135 comments that

 Australian legislation and military doctrine stipulate that soldiers ‘subjugate their will’ to government, and fight in any war the government declares. Neither legislation nor doctrine enables the conscience of soldiers. Together, provisions of legislation and doctrine seem to take soldiers for granted. And, rather than strengthening the military instrument, the convention of legislation and doctrine seems to weaken the democratic foundations upon which the military may be shaped as a force for justice. Denied liberty of their conscience, soldiers are denied the foundational right of democratic citizenship and construed as utensils of the State. This article critiques the idea of moral agency in Australian legislation and military doctrine and is concerned with the obligation of the State to safeguard the moral integrity of individual soldiers, so soldiers might serve with a fully formed moral assurance to advance justice in the world. Beyond its explicit focus on the convention of Australian thought, this article raises questions of far-reaching relevance. The provisos of Australian legislation and doctrine are an analogue of western thinking. Thus, this discussion challenges many assumptions concerning military duty and effectiveness. Discussion will additionally provoke some reassessment of the expectations democratic societies hold of their soldiers.

Adams argues that

No soldier can act for justice yet commit to action he or she considers evil. And, no just society can expect the soldiers who defend its ideals to turn a blind eye. Volunteering military service, soldiers pledge - or at least they should pledge - to act conscientiously to advance just causes by just means. Soldiers, therefore, face a challenge in Australian legislation and doctrine, which is insufficiently attentive to soldiers’ moral concerns, failing in particular to consider the dilemma of soldiers who are commanded to participate in operations they consider unjust. 

Though, as Adam Smith observes, the idea of ‘right’ or ‘justice’ is equivocal and interpreted in several relevant ways, the concept is foundational to the democratic ideal. Magna Carta offers celebrated expression holding, at Chapter 40, that ‘to no one will we sell, to no one deny or delay right or justice’. Thus, in a democratic society, legislation and doctrine should operate to secure the background conditions within which the military can function well, as a just instrument and for justice. This is not to suggest that legislation or doctrine can be perfectly just. There is no chance of agreement on what such instruments would be like. Yet, manifest injustice - such as the asphyxiation of soldiers’ conscience - can be redressed, and if it cannot be removed, at the very least such clear injustice can be minimised. 

Considering ideas of social justice, the present article is informed by the ideas of John Rawls who advanced the notion of justice as fairness, and whose basal concern was for the equal liberty of conscience: ‘one of the fixed points in [a] considered judgment of justice’. Rawls recognized that a just society will take the moral convictions of citizens seriously, and enable individuals to examine and to act upon these deeply held beliefs. In Justice as Fairness: A Restatement, Rawls described the equal liberty of conscience as a primary good and constitutional essential. He advanced a view of people as morally responsible and equally free to exercise moral judgment. The moral independence of soldiers is suppressed by Australian legislation and doctrine, which advance an argument typical amongst modern western militaries. 

Exploring the arguments of Australian legislation and doctrine, which together operate to curtail the rights of soldiers, this article accepts that just institutions, which advance individual liberty and fairness, are essential to just societies, which in turn are critical to global justice. The article’s importance derives from the fact Geoffrey Robertson observes, that ‘at the beginning of the twenty-first century, the dominant motive in world affairs is the quest - almost the thirst - for justice. [This thirst is] replacing even the objective of regional security as the trigger for international action’. 

The article is focused on provisions of the Australian Defence Act, and on argument advanced in military doctrine ‘pitched at the philosophical and high application level’. Doctrine, which is subordinate to legislation, ‘states the ADF’s philosophical military approach to the operating environment’. Taken together, ideas set down in legislation and doctrine, are critically important as part of what Walzer called the war convention: the ‘norms, customs, professional codes, legal precepts, religious and philosophical principles and reciprocal arrangements that shape our judgments of military conduct’. 

Though focused on the ‘conventions’ of Australian thought, this article identifies and critiques a thematic approach to military service, typical of many western powers, and deserving academic scrutiny.

He concludes -

This article argued against the provisions of Australian legislation and doctrine that soldiers subjugate their will to Government. Denying soldiers access to their conscience, the Australian convention was seen to be unworkable and wrong. The example of Commodore Richard Menhinick RAN, cited in The Age newspaper of 12 July 2012, illustrates the unsafe nature of the Australian position. 

The newspaper describes how, when commanding officer of HMAS Warramunga in 2001, the then Commander Menhinick defied direction to abandon asylum seekers at sea. Finding his orders neither ‘sensible nor ethically prudent’, Commodore Menhinick declined to follow legal command. Refusing to be subjugated, the Commodore is quoted as understanding ‘the importance of acting with integrity and in good conscience’. This principled officer reveals the absurdity of legislative and doctrinal provisions that assume military service entails soldiers’ moral quiescence, and demonstrates what Walzer calls the ‘long tradition’ of officers who ‘protest commands of their civilian superiors that would require them to violate the rules of war and turn them into mere instruments’. Acting deliberately as an agent of justice, the Commodore demonstrated the critical importance of conscience to the profession of arms, and the impossibility of the inelastic provisions within Australian legislation and doctrine. 

Australian legislation and doctrine presumes that no-one can cavil, no matter how iniquitous the pretext for action. Reinforcing the coercive power of military institutions, the legislative-doctrinal convention is oblivious to the fact that atrocities soldiers commit are their own.

Crafted to uphold jus in exercitu obligations, the convention should abandon the fable of unquestioning obedience. Debunked by the Nuremburg tribunal, this myth was made infamous by Himmler at Posen on 4 October 1943. On this occasion, in a speech to Nazi police fuehrers, Himmler argued that obedience to orders - no matter how ghastly - was a mark of honour. The Nuremburg testimony of SS Gruppenfuehrer Otto Ohlendorf illustrates how this impossible dogma was accepted. Formerly leader of the Einsatzkommandos, Ohlendorf admitted calmly to the murder of 90,000 Jews. Despite confessing to pangs of scruple, he said, ‘it was inconceivable that a subordinate leader should not carry out orders given by the leaders of the State’.

We need to think differently so as we might apply military power more wisely. Legislation and military doctrine need to acknowledge that soldiers who believe orders to be immoral, not merely illegal, have a duty to refuse. Alastair McIntosh writes:

For the first time in history we have at our fingertips utter destructive power, but matched to it, all the possibilities for greater understanding opened up by globalised communications. Now is the time to press the reset button at many levels of depth.

This is not the time to be comfortably complacent, to assume familiar ideas will serve into the future. A new position must be endorsed, and with it, a new way of understanding military service, military ideals and military functions. No longer must the legislation or the doctrine perpetuate notions of subjugation, which dehumanise soldiers and degrade the democratic foundations of the military instrument. These ideas place the world in peril of crimes of obedience, committed by morally repressed soldiers unable to discern an alternative. 

The war convention must recognise the moral justification for disobedience afforded by the conscience. Legislative and doctrinal instruments must acknowledge that the duty to obey is not absolute, and that the moral obligation to disobey may be prompted by more than manifest illegality.