Posner on Immigration Courts and Judges

Picswiss_BE-98-17_Biel-_Gerechtigkeitsbrunnen_%28Burgplatz%29.jpgJudge 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.

Image: WikiCommons

Author: Roland Zumbühl (Picswiss), Arlesheim

License: GNU Free Documentation License, Version 1.2

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3 Responses

  1. Matt Lister says:

    The problems Posner notes are all real and important but at least some of them should be cast as problems with the immigration court system rather than with immigration judges. (He does do that to some degree but should probably do it more than he does.) There are real and serious problems with many immigration judges (as with all judges!) but immigration judges are also in especially difficult situations compared to most judges (especially court of appeals judges) in that they have very, very limited resources- almost no clerk support, very limited research materials, primitive materials for recording, very little administrative support, and so on. On top of a huge case-load it’s difficult to see how anyone could do a fully adequate job. The first and most important thing to do in improving the system, then, should be to provide many more resources.

  2. Deven says:

    Hmm, I think he is saying that judges need more in general from resources to training to a more coherent system in general. In other words the idea that the system is inadequate is the thrust of the idea. I did, however, go into judges and judging in general so perhaps this came across as a criticism of immigration judges. That was not the goal. Rather as you note, these judges face particular problems that require particular solutions. Nonetheless, insofar as one finds a judge acts on impulse, instinct, or intuition, it may be that occurence is not unique.

    Thanks for the thoughts



  3. Matt Lister says:

    Thanks Deven- that’s helpful. I worried that my remarks were only partly relevant to your point, which is a good one. My criticism of Posner (which is perhaps more based on some of the earlier things he’s said on this issue) is just that I don’t think he gives enough weight to the problems faced by immigration judges as opposed to scolding them for being bad judges. Some of them are and some for the reasons you mention. I simply worry that people will tend to put too much weight on that side of the issue.