Explaining Dissent on the Supreme Court of Canada
01 Jun 2011-Canadian Journal of Political Science (Cambridge University Press)-Vol. 44, Iss: 02, pp 389-409
TL;DR: This paper found that the likelihood of dissension is strongly related to four broad factors that appear to exert independent influence on whether the Court is consensual or divided: political conflict, institutional structure, legal ambiguity in the law and variations in the leadership style of the chief justice.
Abstract: . While there is an extensive literature on the causes of dissensus on appellate courts in the US, few empirical studies exist of the causes of dissent in Canadian Supreme Court. The current study seeks to close that gap in the literature, proposing and then testing what we call a Canadian model of dissent. We find that the likelihood of dissent is strongly related to four broad factors that appear to exert independent influence on whether the Court is consensual or divided: political conflict, institutional structure, legal ambiguity in the law and variations in the leadership style of the chief justice.Resume. Les causes de dissension dans les cours d'appel aux Etats-Unis font l'objet de nombreux articles et publications, mais il existe tres peu d'etudes empiriques sur les causes de dissidence a la Cour supreme du Canada. La presente etude vise a combler cette lacune en proposant, un modele canadien de dissension, puis en le mettant a l'epreuve. Nous avons constate que le risque de dissension est fortement lie a quatre facteurs generaux qui semblent exercer une influence independante, que la Cour soit en accord ou divisee. Ces facteurs sont le conflit politique, la structure institutionnelle, la presence d'une ambiguite juridique dans la loi et le style de direction du juge en chef.
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TL;DR: In this paper, a context-specific analysis for assessing the value of dissent in constitutional adjudication is presented, which considers several contextual factors including: the jurisdiction's tradition, legal history, and culture; the credibility, function, and procedure of its court; and the background and training of the court's members.
Abstract: This paper addresses the long-standing international debate over whether the publication of dissenting opinions should be permitted in constitutional courts of last resort. It argues in response to this debate that a conclusion of general application is futile. Courts are not identical: their jurisdictions have unique legal histories, traditions, and cultures; they serve different functions and speak to different audiences; and, they are composed of members with fundamentally dissimilar training and backgrounds. This paper contributes to the debate by setting out a context-specific analysis for assessing the value of dissent in constitutional adjudication. It considers several contextual factors including: the jurisdiction's tradition, legal history, and culture; the credibility, function, and procedure of its court; and the background and training of its court's members. Applying this contextual analysis to Canada, this paper concludes that presently the publication of dissenting opinions is a valuable component of constitutional adjudication in the Supreme Court of Canada.
7 citations
TL;DR: In this article, the authors investigate the extent to which judges exhibit different judicial behavior depending on the type of appeal being brought to the court, i.e., Commonwealth, devolution and domestic appeals.
Abstract: In this article, we study judicial behavior at the Judicial Committee of the Privy Council (JCPC). British judges in general, and British high court judges in particular, are perceived to be independent and isolated from political pressure and interference. Furthermore, these judges tend to show a particularly high rate of consensus. This has led many scholars to consider that, contrarily to what holds for several other courts around the world (such as the US Supreme Court), the attitudinal model does not find support when British higher court judges are considered. In this paper we assess whether similar conclusions might be drawn from the JCPC, another British court of last resort. We create a unique dataset to study empirically decisions of the JCPC and investigate the extent to which judges exhibit different judicial behavior depending on the type of appeal being brought to the court, i. e., Commonwealth, devolution and domestic appeals. Our results indicate a higher polarization of judicial behavior in the context of devolution appeals (as measured by separate opinions). We discuss these results in the context of the comparative judicial behavior literature and the role of courts in the common law world (with particular reference to human rights).
6 citations
Cites background from "Explaining Dissent on the Supreme C..."
...30On Canada, see Tate and Sittiwong (1989), Alarie and Green (2008), Green and Alarie (2009), and Songer, Szmer, and Johnson (2011)....
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TL;DR: In this article, a multi-country series of 17 interviews with judges and clerks in six different courts was conducted to shed new light on how judicial consensus is formed, both ordinary and constitu...
Abstract: This article seeks to shed new light on how judicial consensus is formed. Through a multi-country series of 17 interviews with judges and clerks in six different courts – both ordinary and constitu...
6 citations
Cites background from "Explaining Dissent on the Supreme C..."
...Past research has shown the potentially important role of court leadership in consensus formation (e.g., Songer, Szmer, and Johnson 2011)....
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Book•
31 Dec 2016
TL;DR: The database built by the described process provides precise information for scientific analyses as well as a broader target group and serves the purpose defined at the beginning of this part of the book.
6 citations
TL;DR: In this article, the authors discuss empirical analysis of the various influences on judicial voting in constitutional cases and examine the influence of these institutional differences before considering in Part 5 contextual factors which may shift constitutional decision-making such as war or national security concerns.
Abstract: Empirical research on voting in constitutional cases is so difficult because there are so many potential influences on judges and such tremendous variance across countries. Some countries have written constitutions and some do not. For those that do, the scope of the rights and freedoms varies widely. Some countries have special courts to deal with constitutional matters while others allow lower courts to hear initial applications with appeals going to a generalist high court. At an even more basic level, empirical study of constitutional voting, and on judicial decision-making more generally, is made more challenging by the fact that there is not even a clear, agreed upon theory of how judges make decisions. As we will see, various models of how judges decide have been explored from the legal model (judges follow the law) to the widely used attitudinal and strategic models (examining the degree to which judges follow their personal preferences) and more recently a labour market model and explorations of other dimensions of judicial decisions.
In this paper we discuss empirical analysis of the various influences on judicial voting in constitutional cases. We begin with a brief discussion of what we are aiming to study – the judge’s vote – before turning to the judges themselves in Part 2. Does one judge vote differently from another because they are different people, with particular political or world views and certain characteristics such their gender? Studying how a judge’s attitudes influence her voting is a long-standing line of inquiry in empirical legal studies and political science. However, not surprisingly, a judge may also care about the law itself. For example, a judge may vote differently in a case involving striking employees if there is a broadly written right to association as opposed to a specific right to strike. What if there is no written constitution at all but instead some unwritten constitutional principles? Part 3 examines some approaches to determining how such differences in constitutional law may influence judges. Part 4 turns to the institutional structure surrounding the judge such as the structure of the court, the nature of the political system, and even the norms of decision-making by the judges themselves. We examine the influence of these institutional differences before considering in Part 5 contextual factors which may shift constitutional decision-making such as war or national security concerns. Our aim is to discuss both how existing analysis has been undertaken and the limitations of such analysis. We end the paper by pointing to the need for more comparative work.
6 citations
Cites result from "Explaining Dissent on the Supreme C..."
...Other studies, however, have found no or only a weak association between workload and dissent rate in a number of countries (Walker, Epstein and Dixon 1988; Alarie and Green 2017; Songer et al 2011)....
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References
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Book•
10 Sep 2014
TL;DR: In this article, the authors present a brief tutorial for estimating, testing, fit, and interpretation of ordinal and binary outcomes using Stata. But they do not discuss how to apply these models to other estimation commands, such as post-estimation analysis.
Abstract: Preface PART I GENERAL INFORMATION Introduction What is this book about? Which models are considered? Whom is this book for? How is the book organized? What software do you need? Where can I learn more about the models? Introduction to Stata The Stata interface Abbreviations How to get help The working directory Stata file types Saving output to log files Using and saving datasets Size limitations on datasets Do-files Using Stata for serious data analysis Syntax of Stata commands Managing data Creating new variables Labeling variables and values Global and local macros Graphics A brief tutorial Estimation, Testing, Fit, and Interpretation Estimation Postestimation analysis Testing estat command Measures of fit Interpretation Confidence intervals for prediction Next steps PART II MODELS FOR SPECIFIC KINDS OF OUTCOMES Models for Binary Outcomes The statistical model Estimation using logit and probit Hypothesis testing with test and lrtest Residuals and influence using predict Measuring fit Interpretation using predicted values Interpretation using odds ratios with listcoef Other commands for binary outcomes Models for Ordinal Outcomes The statistical model Estimation using ologit and oprobit Hypothesis testing with test and lrtest Scalar measures of fit using fitstat Converting to a different parameterization The parallel regression assumption Residuals and outliers using predict Interpretation Less common models for ordinal outcomes Models for Nominal Outcomes with Case-Specific Data The multinomial logit model Estimation using mlogit Hypothesis testing of coefficients Independence of irrelevant alternatives Measures of fit Interpretation Multinomial probit model with IIA Stereotype logistic regression Models for Nominal Outcomes with Alternative-Specific Data Alternative-specific data organization The conditional logit model Alternative-specific multinomial probit The sturctural covariance matrix Rank-ordered logistic regression Conclusions Models for Count Outcomes The Poisson distribution The Poisson regression model The negative binomial regression model Models for truncated counts The hurdle regression model Zero-inflated count models Comparisons among count models Using countfit to compare count models More Topics Ordinal and nominal independent variables Interactions Nonlinear models Using praccum and forvalues to plot predictions Extending SPost to other estimation commands Using Stata more efficiently Conclusions Appendix A Syntax for SPost Commands Appendix B Description of Datasets References Author Index Subject Index
4,703 citations
Journal Article•
2,947 citations
Book•
26 Feb 1993TL;DR: In this article, two leading scholars of the US Supreme Court and its policy making, systematically present and validates the use of the attitudinal model to explain and predict Supreme Court decision making.
Abstract: This book, authored by two leading scholars of the Supreme Court and its policy making, systematically presents and validates the use of the attitudinal model to explain and predict Supreme Court decision making. In the process, it critiques the two major alternative models of Supreme Court decision making and their major variants: the legal and rational choice. Using the US Supreme Court Data Base, the justices' private papers, and other sources of information, the book analyzes the appointment process, certiorari, the decision on the merits, opinion assignments, and the formation of opinion coalitions. The book will be the definitive presentation of the attitudinal model as well as an authoritative critique of the legal and rational choice models. The book thoroughly reflects research done since the 1993 publication of its predecessor, as well as decisions and developments in the Supreme Court, including the momentous decision of Bush v. Gore.
895 citations
TL;DR: Using content analytic techniques, this paper derived independent and reliable measures of the values of all Supreme Court justices from Earl Warren to Anthony Kennedy, providing strong support for the attitudinal model.
Abstract: It is commonly assumed that Supreme Court justices' votes largely reflect their attitudes, values, or personal policy preferences. Nevertheless, this assumption has never been adequately tested with independent measures of the ideological values of justices, that is, measures not taken from their votes on the Court. Using content analytic techniques, we derive independent and reliable measures of the values of all Supreme Court justices from Earl Warren to Anthony Kennedy. These values correlate highly with the votes of the justices, providing strong support for the attitudinal model.
633 citations
482 citations