251 (1997) (discussing the relationship between traditional legal scholarship and empirical studies of judicial behavior
The realistic approach to judicial behavior
is challenged in the article by Judge Edwards and Mr.
Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior
(Princeton: Princeton University Press, 2006) at 72.
"Political Jurisprudence", which had claimed the linkage between jurisprudence and politics, redefined its research agenda towards the analysis of "judicial behavior
", which replaced jurisprudence by politics.
(69.) According to the Rector of the Real Colegio de Escribanos, the deputy scribes often performed fee-based notarial transactions, lucrative judicial behavior
that was contrary to royal legislation and the 1782 enabling ordinance that limited their responsibilities to criminal jurisdiction.
Proponents of elective systems, partisan and nonpartisan, argue that regular submission of judges to the electorate in contested elections is necessary to provide a meaningful public check on "bad" judicial behavior
. They also argue that contested elections provide a forum in which judicial issues can be debated and clarified between opposing candidates.
Instead, they rely on two types of arguments, both of which are illustrated by the public choice analysis of judicial behavior
. The first is flat denial.
The only study that comes close in spirit, design, and execution, although not in breadth or elegance of exposition, is Schubert's Political Culture and Judicial Behavior
Cushman explains the development of this myth in part by noting that the key decisions of 1937 "occurred at a point in American history when the field of constitutional commentary was dominated by scholars inclined to predominantly political explanations of judicial behavior
Despite historical patterns and legal precedent, participants in our system of justice have rarely relied on empirical methods for evaluating judicial behavior
and its impact on trial fairness, judicial recusal or disqualification, or the appearance of justice.(53) Indeed, practitioners often confuse conceptions of trial fairness and judicial impartiality.(54) Professor Leubsdorf writes: "Educated by the Legal Realists and their successors, lawyers fear that the values and experiences of judges ultimately shape their decisions.
To be sure, the book has a healthy dose of economic reasoning, including an attempt to describe judges' adherence to precedent as a function of the trade-offs between the "consumption value" each judge obtains by exercising discretionary voting power in individual cases, the value individual judges place on leisure time, and the effect of particular modes of judicial behavior
on a judge's overall reputation.
Judicial activism, as discussed by Osborne and DiMattia and defined by Black's Law Dictionary (Black, Nolan, & Nolan-Haley, 1990), is a theory of judicial behavior
that advocates the judiciary's basing their decisions not on precedent or an analysis of legislative law, but rather on what the judges determine to be fair and just for the public welfare.