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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Journal Article•
TL;DR: There is a strong need for a better balance in patent law to secure the proper interpretation of the ordre public and morality exemption in European patent law, in accordance with the purposes and intentions of the European legislator and with the EU's Charter of Fundamental Rights.
Abstract: Authored by Ingrid Schneider The essence of this Opinion is supported by Christoph Then This document is a dissenting opinion to the Report on patents in the field of human stem cells (hereinafter referred to as the “Report”) of the Expert Group on the development and implications of patent law in the field of biotechnology and genetic engineering (E02973). As in the Report, this dissenting opinion is focused on human stem cells, human embryos and gametes as well as the application of the ordre public and morality clause of Art. 53 EPC and the respective Articles 5 and 6 in the Directive 98/44/EC. Summary The Report does not object to “non‐destructive uses” of human embryos (cf. Report, page 18). Article 6(2)c of the Directive, however, considers unpatentable \"uses of human embryos for industrial or commercial purposes\" and does not distinguish between \"destructive\" and \"non‐destructive\" uses of human embryos. It is arbitrary to exclude \"destructive uses\" from patentability and to allow \"non‐destructive\" uses of human embryos. Even if \"non‐destructive\" uses of human embryos were deemed patentable, the method disclosed in Chung et al. 2008 does not provide sound evidence for a \"non‐ destructive\" use of human embryos, contrary to the Report (page 20) Stem cells derived from activated human egg cells (parthenogenetic embryonic stem cells, hpES) are not identical to human embryonic stem cells, and therefore it is inadmissible to grant patents for processes and products on human embryonic stem cells, based on such hpES methods. Novel methods enable the use of iPS or embryonic stem cells to create artificial gametes and embryos genetically derived from two partners of same sex or from one individual only. It is recommended that both the European Commission and the EPO specify and clarify that the term “germ cell” also includes artificially created egg and sperm cells, and that the term embryo also covers those artificially fused embryos. Genome editing technologies such as CRISPR have reignited the debate on human germline modification. It is paramount that both the European Commission and the EPO specify and clarify that Articles 6(2)b and 6(2)c apply to CRISPR‐Cas9 and CRISPR‐ Cpf1, if practiced in human germ cells and human embryos. Transparency and accountability of the work of the EPO requires disclosure of data on patent applications and grants, and revelation of changed granting practices in the EPO's Guidelines for Examination. There is a strong need for a better balance in patent law to secure the proper interpretation of the ordre public and morality exemption in European patent law, in accordance with the purposes and intentions of the European legislator and with the EU's Charter of Fundamental Rights. This requires the European Commission to take the initiative in strengthening the patent exclusions in Articles 5 and 6. In view of the rapid scientific developments it is urgently needed to provide an adequate clarification and precise guidance for the correct interpretation of the Directive 98/44/EC. This would comprise the following possibilities:
59 citations
TL;DR: In this paper, an empirical analysis of judicial behavior in the Spanish Supreme Court, a court of law dominated by career judges, is presented, which suggests that a career judiciary is not strongly politically aligned and favors consensus, formalism and dissent avoidance.
Abstract: This article develops an empirical analysis of judicial behavior in the Spanish Supreme Court, a court of law dominated by career judiciary. We focus on administrative review. The evidence seems to confirm that a career judiciary is not strongly politically aligned and favors consensus, formalism, and dissent avoidance. Notwithstanding, we detect a significant relationship between the decisions of the Court and the interest of the government. We suggest that our empirical analysis makes a significant contribution to undermine the myth of political insulation by career judges. Unlike previous literature, however, we argue and illustrate that judicial politicization can be consistent with consensus and dissent avoidance.
41 citations
Cites background from "Explaining Dissent on the Supreme C..."
...…et al. (1997) and Eisenberg et al. (2011) for the case of Israel, Henderson (2007) for the case of the U.S. Supreme Court, Eisenberg and Miller (2009) for U.S. state supreme courts, Smyth and Narayan (2004) for the Australian High Court, and Songer et al. (2011) for the Canadian Supreme Court....
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...9On Canada, see Tate and Sittiwong (1989), Alarie and Green (2008), Green and Alarie (2009), and Songer et al. (2011)....
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TL;DR: In this paper, an empirical analysis of judicial behavior in the Spanish Supreme Court, a court of law dominated by career judges, is presented, which suggests that a career judiciary is not strongly politically aligned and favors consensus, formalism and dissent avoidance.
Abstract: This article develops an empirical analysis of judicial behavior in the Spanish Supreme Court, a court of law dominated by career judiciary. We focus on administrative review. The evidence seems to confirm that a career judiciary is not strongly politically aligned and favors consensus, formalism, and dissent avoidance. Notwithstanding, we detect a significant relationship between the decisions of the Court and the interest of the government. We suggest that our empirical analysis makes a significant contribution to undermine the myth of political insulation by career judges. Unlike previous literature, however, we argue and illustrate that judicial politicization can be consistent with consensus and dissent avoidance.
25 citations
TL;DR: The analysis of the decision-making in the Polish Constitutional Tribunal seems to support the existence of some party alignment, either because judges' preferences coincide with the interests of a specific party or because the judges are incentivized to show their loyalty to a party.
Abstract: Different theories have been developed, mainly in the context of the United States, to explain judicial decision-making. In this respect, there is an important ongoing debate over whether judges are guided by the law or by personal ideology. The analysis of the decision-making in the Polish Constitutional Tribunal seems to support the existence of some party alignment. It is to say that judicial behavior is influenced by the ideology, either because judges’ preferences coincide with the interests of a specific party or because the judges are incentivized to show their loyalty to a party. Party alignment exists but subject to institutional influences. These results are in line with previous findings for other constitutional courts in Europe.
21 citations
Cites background from "Explaining Dissent on the Supreme C..."
...In Poland, the nominations to the Court are exclusively vested 3 On Canada, see Tate and Sittiwong (1989), Alarie and Green (2008), Green and Alarie (2009), and Songer et al. (2011)....
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References
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TL;DR: In this article, an empirical model of Supreme Court consensus and dissension is estimated over 1800-2001 in which characteristics of the presidential-senatorial screen are key variables, and the results show that variations in consensus are linked to two components of the selection screen, the party of the confirming Senate and split party nominations and confirmations.
Abstract: From 1940 to the present, the on-the-record consensus among Supreme Court justices fell precipitously relative to historical benchmarks. This paper first shows that Court consensus is closely associated with measures of consistency and stability of Court rulings. Then, an empirical model of Supreme Court consensus and dissension is estimated over 1800–2001 in which characteristics of the presidential-senatorial screen are key variables. Using OLS and controlling for several other influences, the results show that variations in consensus are linked to two components of the selection screen – the party of the confirming Senate and split party nominations and confirmations. Other than the selection screen, the size of the federal judiciary and consensus norms in the recent past are important influences. These results are also confirmed using GARCH and regime-shifting econometric methods.
11 citations
TL;DR: In this paper, the impact of social background on the collective behavior of judges at the court level is examined. But, the lack of an ascertainable relationship between background and judicial behavior may be the level of analysis.
Abstract: Scholarly efforts to link the social background of appellate court judges to their actions have been consistently unsuccessful.1 Various reasons have been offered for the impossibility of verifying an intuitively satisfying explanation of judicial behavior. It has been variously contended that statistical measures employed are inadequate, that scholars have selected the wrong dependent variables, or that there is no soundly based theoretical framework from which hypotheses can logically be deduced linking specific background to specific behavior.2 Another reason for the lack of an ascertainable relationship between background and judicial behavior may be the level of analysis. Most social background studies attempt to relate individual backgrounds to individual judge behaviors and do not focus on the broader question of the impact of social backgrounds on the collective behavior of judges at the court level. It is entirely possible that differences between indi-
9 citations
"Explaining Dissent on the Supreme C..." refers background in this paper
...In particular, state courts with diversity in the political party background of their judges were found to have higher rates of dissent than states whose judges shared a common party background ~Jaros and Canon, 1971; Patterson and Rathjen, 1976!....
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TL;DR: In this article, the authors explore the patterns of leadership and influence found on the Supreme Court of Canada during the tenure of Chief Justice Antonio Lamer (1991-97) and demonstrate considerable evidence of task leadership by the Chief Justice in a period of revolutionary constitutional policy making.
Abstract: The examination of judicial leadership roles in American courts has been a project of study for decades, yet it has received little attention in comparative settings. Using the theoretical constructs of task and social leadership, we explore the patterns of leadership and influence found on the Supreme Court of Canada during the tenure of Chief Justice Antonio Lamer (1991-97). The findings demonstrate considerable evidence of task leadership by the Chief Justice in a period of revolutionary constitutional policy making. Additionally, the results suggest that the Chief Justice exhibited strong instincts in marshalling a consistent winning coalition to secure majority decisions, and in crafting a cohesive court with a low rate of dissent. Still, dissent rates did climb somewhat under Lamer's tenure as chief, with the leading dissenters turning out to be the two women on the bench. One of those relative outsiders has recently ascended to the position as chief (Justice Beverly McLachlin). The study powerfully...
8 citations
"Explaining Dissent on the Supreme C..." refers background in this paper
...Known to many as the “Great Dissenter,” in an analysis of opinion writing patterns during the Lamer Court, L’Heureux-Dubé was found to have authored dissenting opinions at a rate of 61 per cent ~Ostberg et al., 2004!....
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Journal Article•
TL;DR: This article examined the divided panel decisions of the first seven years of the Lamer Court to suggest answers to the following questions: are there identifiable fault lines dividing a persisting ''majority'' and ''minority''?
Abstract: The Supreme Court does not always speak with a single voice; for many decisions, there are judges who register disagreement with the majority's legal reasoning or even with the outcome. Are there identifiable fault lines dividing a persisting \"majority\" and \"minority?\" Are there one or more \"swing vote\" judges who allow the minority some share of the decisions of the Court? And, given that the coalitions are shifting rather than rigid, which pairings of judges most frequently (or most seldom) hold together through these shifts? This paper examines the divided panel decisions of the first seven years of the Lamer Court to suggest answers to these questions. This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol36/iss2/4 BIRDS OF A FEATHER: ALLIANCES AND INFLUENCES ON THE LAMER COURT 1990-1997
7 citations