Strategic Anticipation and En Banc Oversight Procedures in the U.S. Courts of Appeals

2019 ◽  
Vol 48 (3) ◽  
pp. 391-401
Author(s):  
Joshua A. Strayhorn
Keyword(s):  
Decision Making ◽  
Courts Of Appeals ◽  
Lower Court ◽  
Ex Post ◽  
Adoption And Implementation ◽  
Ex Ante ◽  
The Impact ◽  
New Evidence ◽  
Circuit Courts ◽  
The U.S

The U.S. Courts of Appeals must ordinarily convene en banc to overturn circuit law. However, roughly half of the circuit courts have adopted an alternative, less costly procedure, the informal en banc, where three-judge panels may overturn precedent with approval of the full circuit. This article leverages variation in adoption and implementation of this institution to analyze the implications of ex post oversight mechanisms for ex ante panel decision making. The evidence suggests that the informal en banc substantially reduces the impact of ideology on panel decision making, providing new evidence that lower court judges strategically alter their behavior in anticipation of potential override by circuit colleagues.

Civil Liability Against Prison Officials for Inmate-On-Inmate Assault: Where are We and Where Have We Been?

1995 ◽  
Vol 75 (1) ◽  
pp. 69-89 ◽  
Author(s):  
MICHAEL S. VAUGHN ◽  
ROLANDO V. DEL CARMEN
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Courts Of Appeals ◽  
Correctional Facilities ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Statistical Frequency ◽  
Civil Liabilities ◽  
Circuit Courts ◽  
The U.S

This article focuses on civil liabilities imposed on prison officials for inmate-by-inmate assault in correctional facilities. After briefly discussing the statistical frequency of inmate-by-inmate assault, the article examines Farmer v. Brennan, a case on inmate-by-inmate assault decided in 1994 by the U.S. Supreme Court. Through an analysis of 96 pre-Farmer cases on inmate assault decided in the U.S. circuit courts of appeals, the article outlines the parameters under which officials might be held liable in post-Farmer litigation. The article concludes that the circumstances and situations under which prison officials are liable will not sufficiently change because the realities of judicial decision making may make it difficult for individual judges to distinguish between pre-Farmer and post-Farmer standards.

Epilogue

2018 ◽  
Author(s):  
Eric K. Yamamoto
Keyword(s):  
Judicial Independence ◽  
Courts Of Appeals ◽  
Lower Court ◽  
Executive Orders ◽  
Judicial Scrutiny ◽  
The U.S ◽  
Assistance Project

The concise Epilogue describes the U.S. Supreme Court’s late-2017 vacation of the courts of appeals rulings in the International Refugee Assistance Project v. Trump and Hawaii v. Trump cases (determining that the litigated controversy over the president’s January and March 2017 exclusionary executive orders was moot). It incorporates Justice Sotomayor’s dissent and notes that the lower court rulings “may be persuasive and cited as guidance, but not as binding precedent.” It observes therefore that the Korematsu conundrum persists at the heart of these and future liberty and security controversies: careful judicial scrutiny or near unconditional deference, judicial independence or court passivity.

scholarly journals Going Beyond Panaceas: The Diversity of Land Observatory Forms in Africa

Land ◽  
2020 ◽  
Vol 9 (3) ◽  
pp. 70 ◽  
Author(s):  
Quentin Grislain ◽  
Jeremy Bourgoin ◽  
Ward Anseeuw ◽  
Perrine Burnod ◽  
Eva Hershaw ◽  
...  
Keyword(s):  
Decision Making ◽  
Participant Observation ◽  
Video Conferencing ◽  
Analytical Framework ◽  
Informed Decision ◽  
Informed Decision Making ◽  
Information Production ◽  
Dynamic Data ◽  
Ex Post ◽  
Ex Ante

In recent decades, mechanisms for observation and information production have proliferated in an attempt to meet the growing needs of stakeholders to access dynamic data for the purposes of informed decision-making. In the land sector, a growing number of land observatories are producing data and ensuring its transparency. We hypothesize that these structures are being developed in response to the need for information and knowledge, a need that is being driven by the scale and diversity of land issues. Based on the results of a study conducted on land observatories in Africa, this paper presents existing and past land observatories on the continent and proposes to assess their diversity through an analysis of core dimensions identified in the literature. The analytical framework was implemented through i) an analysis of existing literature on land observatories, ii) detailed assessments of land observatories based on semi-open interviews conducted via video conferencing, iii) fieldwork and visits to several observatories, and iv) participant observation through direct engagement and work at land observatories. We emphasize that the analytical framework presented here can be used as a tool by land observatories to undertake ex-post self-evaluations that take the observatory’s trajectory into account, or in the case of proposed new land observatories, to undertake ex-ante analyses and design the pathway towards the intended observatory.

Collegial Courts: Panel Decision-Making and the U.S. Courts of Appeals

2021 ◽  
Author(s):  
Pamela C. Corley ◽  
Wendy L. Martinek
Keyword(s):  
Decision Making ◽  
Court Decision ◽  
Appellate Court ◽  
Courts Of Appeals ◽  
Court Of Appeals ◽  
Appeals Process ◽  
Almost All ◽  
The U.S

The three-judge panel mechanism by which the courts of appeals process almost all (though not quite all) of their cases affords scholars unique opportunities to explore how appellate court decision-making may transcend being merely the sum of its parts. Specifically, court of appeals judges pursue their decision-making responsibilities as part of a collegial group, and thus it is important to understand how being a member of a multimember court influences their behavior.

scholarly journals Evaluación de dos perturbaciones simultáneas en bosques de Araucaria-Lenga, usando diferencias de índices espectrales

2021 ◽  
Vol 27 ◽  
pp. 5-18
Author(s):  
Marco Antonio Peña ◽  
Patricio Calderón
Keyword(s):  
Spectral Index ◽  
The State ◽  
Landsat 8 ◽  
Southern Andes ◽  
Ex Post ◽  
Composition And Structure ◽  
Ex Ante ◽  
Land Covers ◽  
The Impact

This study assessed the impact produced by a wildfire and an infectious outbreak led by an oomycete pseudofungi, both occurred in 2015, on the state of Araucaria-Lenga forests of the China Muerta Reserve, placed in the southern Andes of Chile. To do this, a greenness vegetation spectral index was calculated over a multitemporal set of Landsat-8 images, acquired biannually on near-anniversary dates, which was subject to subtractions between ex-ante (2013) and ex-post dates (2015, 2017, 2019). Results show the magnitude and temporal progression of both disturbances, highlighting the celerity and aggressiveness of the wildfire. Although the affected vegetation land covers currently show values close to the recovery of the primal biomass, the inclusion of field-based data to deepen the possible composition and structure variations of these forests is needed.

DEONTOLOGY, THRESHOLDS, AND EFFICIENCY

Legal Theory ◽  
2011 ◽  
Vol 17 (4) ◽  
pp. 301-317 ◽  
Author(s):  
Christopher T. Wonnell
Keyword(s):  
Decision Making ◽  
Degrees Of Freedom ◽  
Moral Judgments ◽  
Rule Following ◽  
Threshold Functions ◽  
Ex Post ◽  
Ex Ante ◽  
The Many ◽  
The Relationship ◽  
Public Decision

This article explores four topics raised by Eyal Zamir and Barak Medina's treatment of constrained deontology. First, it examines whether mathematical threshold functions are the proper way to think about limits on deontology, given the discontinuities of our moral judgments and the desired phenomenology of rule-following. Second, it asks whether constrained deontology is appropriate for public as well as private decision-making, taking issue with the book's conclusion that deontological options are inapplicable to public decision-making, whereas deontological constraints are applicable. Third, it examines the issue of the relationship between deontology and efficiency, asking whether deontological constraints should yield in situations where everyone would expect to benefit from their suspension, either ex ante or ex post. Finally, the article concludes that constrained deontology is susceptible to political abuse because of the many degrees of freedom involved in identifying constrained actions and the point at which those constraints yield to consequentialist benefits.

scholarly journals How should we regulate artificial intelligence?

2018 ◽  
Vol 376 (2128) ◽  
pp. 20170360 ◽  
Author(s):  
Chris Reed
Keyword(s):  
Artificial Intelligence ◽  
Neural Networks ◽  
Decision Making ◽  
Current System ◽  
General System ◽  
Fundamental Rights ◽  
Ex Post ◽  
Ex Ante ◽  
Human Decision

Using artificial intelligence (AI) technology to replace human decision-making will inevitably create new risks whose consequences are unforeseeable. This naturally leads to calls for regulation, but I argue that it is too early to attempt a general system of AI regulation. Instead, we should work incrementally within the existing legal and regulatory schemes which allocate responsibility, and therefore liability, to persons. Where AI clearly creates risks which current law and regulation cannot deal with adequately, then new regulation will be needed. But in most cases, the current system can work effectively if the producers of AI technology can provide sufficient transparency in explaining how AI decisions are made. Transparency ex post can often be achieved through retrospective analysis of the technology's operations, and will be sufficient if the main goal is to compensate victims of incorrect decisions. Ex ante transparency is more challenging, and can limit the use of some AI technologies such as neural networks. It should only be demanded by regulation where the AI presents risks to fundamental rights, or where society needs reassuring that the technology can safely be used. Masterly inactivity in regulation is likely to achieve a better long-term solution than a rush to regulate in ignorance. This article is part of a discussion meeting issue ‘The growing ubiquity of algorithms in society: implications, impacts and innovations'.

Article II Treaties and Signaling Theory

2020 ◽  
pp. 123-142
Author(s):  
Curtis A. Bradley
Keyword(s):  
Signaling Theory ◽  
International Agreement ◽  
Freedom Of Choice ◽  
Political Factors ◽  
Ex Post ◽  
Ex Ante ◽  
Continued Use ◽  
The U.S

This chapter focuses on the treaty-making process set forth in Article II of the U.S. Constitution, which requires that presidents obtain the advice and consent of two-thirds of the Senate. Some scholars contend that, under modern law and practice, presidents can choose to conclude any international agreement by obtaining either ex ante authorization or ex post approval from a majority of Congress rather than obtaining the supermajority “advice and consent” of the Senate. If presidents in fact have this freedom of choice, there appears to be a puzzle: Why do they ever choose to use the Article II treaty process, which is more politically difficult than the executive agreement processes? To be sure, the use of the Article II process has been in decline, but the process is still used for some agreements, including in situations in which the process seems to make it more difficult for presidents to obtain approval of agreements that they support. A common answer to this puzzle is based on signaling theory: Using the Article II process, it is said, allows the president or the country to signal valuable information to potential treaty partners. This chapter argues that the signaling explanation is questionable and suggests that domestic legal and political factors better explain the continued use of the Article II process.

scholarly journals Retrospective Evaluation of the Costs of Complying with Light-Duty Vehicle Surface Coating Requirements

2018 ◽  
Vol 10 (1) ◽  
pp. 39-64
Author(s):  
Ann Wolverton ◽  
Ann E. Ferris ◽  
Nathalie B. Simon
Keyword(s):  
Surface Coating ◽  
Air Pollutants ◽  
Unit Cost ◽  
Hazardous Air Pollutants ◽  
Light Duty ◽  
Ex Post ◽  
Ex Ante ◽  
Light Duty Vehicle ◽  
The Cost ◽  
The U.S

This paper compares the U.S. Environmental Protection Agency’s (EPA) ex ante compliance cost estimates for the 2004 Automobile and Light-Duty Truck Surface Coating National Emission Standards for Hazardous Air Pollutants to ex post evidence on the actual costs of compliance based on ex post cost data gathered from a subset of the industry via pilot survey and follow-up interviews. Unlike many prior retrospective studies on the cost of regulatory compliance, we use this newly gathered information to identify the key drivers of any differences between the ex ante and ex post estimates. We find that the U.S. EPA overestimated the cost of compliance for the plants in our sample and that overestimation was driven primarily by differences in the method of compliance rather than differences in the per-unit cost associated with a given compliance approach. In particular, the U.S. EPA expected facilities to install pollution abatement control technologies in their paint shops to reduce emissions of hazardous air pollutants, but instead these plants complied by reformulating coatings.

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