Posner on Immigration Courts and Judges
Judge Posner has previously voiced his displeasure with immigration judges “the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” This week he has re-stated this view in a speech to the Chicago Bar Association. Judge Posner has called the system “inadequate.” Per the National Law Journal, Posner identified several areas of concern
–better training in international law
–reliance on the State Department for information about international issues
–a need for clinics to improve the immigration bar
–expanded membership of the Board of Immigration Appeals
–conferences so that judges can compare experiences and improve the system
–barriers to understanding the applicant including a lack of familiarity with body language and the need for interpreters
These problem add up to Judge Posner’s conclusion that “personal values and biases” drive the decisions and that “perfunctory review” is often all that occurs.
Despite the problems specific to immigration judges, the basic question of judges relying on instinct seems to haunt all judges. In other words, Judge Psoner may be onto a problem that has both subject matter sources and has its roots in the way judges make decisions in general. There is some good literature on the general question of judicial decision making.
One of the fun parts of my job is co-chairing my school’s colloquium committee which means inviting folks to share their work. Last week Chris Guthrie of Vanderbilt Law School presented his work “Inside the Trial Judges Mind.” The work questions whether formalist or realist understandings of decision making properly explain judging. In their stead, the paper offers an “’intuitive-override’ model of judging. According to this model of judicial behavior, judges generally make intuitive decisions, but sometimes override their intuitive responses with deliberation.” It was a fascinating talk and the work opens many questions about how our system of justice works. For those wishing to read more of Chris’s work here is his SSRN page. The piece that may be of most interest is Blinking on the Bench: How Judges Decide Cases co-authored with Jeffrey J. Rachlinski and Andrew J. Wistrich. The article just came out in the Cornell Law Review.
Author: Roland Zumbühl (Picswiss), Arlesheim