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: 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:
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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.
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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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17 Jul 2000
TL;DR: In this article, a strategic response to draft opinions is presented, along with the decision to accommodate and the politics of coalition formation in the context of coalitions in the European Parliament.
Abstract: 1. Introduction 2. Selecting an author: assigning the majority opinion 3. A strategic response to draft opinions 4. The decision to accommodate 5. The politics of coalition formation 6. Conclusion.
433 citations
"Explaining Dissent on the Supreme C..." refers background in this paper
...…~see Brenner and Spaeth, 1988; Segal and Spaeth, 2002! as well as scholars usually associated with strategic approaches to decision making ~such as Maltzman et al., 2000; Wahlbeck et al., 1999! have presented empirical evidence providing strong support for the assertion that dissent is a function…...
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TL;DR: Parsimonious attribute models reported by as discussed by the authors account for 70 to 90 percent of the variance in the voting of postwar Supreme Court justices in split decisions concerning civil rights and liberties, and economics.
Abstract: The prevailing view among students of judicial politics is that judges' background characteristics or personal attributes cannot provide satisfactory explanations for variation in their decision-making behavior. Parsimonious attribute models reported here account for 70 to 90 percent of the variance in the voting of postwar Supreme Court justices in split decisions concerning civil rights and liberties, and economics. Seven variables representing six meaningful and easily interpretable concepts achieve this success. The concepts are Judge's Party Identification, Appointing President, Prestige of Prelaw Education (economics only), Appointed from Elective Office, Appointment Region (civil liberties only), Extensiveness of Judicial Experience, and Type of Prosecutorial Experience. The impressive performance of these models is attributed to superior measurement, operationalization, and model building; to a greater similarity between personal attribute models and more fully specified ones than has been assumed; and to the possibility that the attitudes which intervene between the personal attributes and the voting of judges are causally very closely linked to voting.
237 citations
"Explaining Dissent on the Supreme C..." refers background in this paper
...Empirical studies of decision making on appellate courts in the United States stress the pre-eminent role of the political preferences of the judges as an explanation for judicial outcomes ~Goldman, 1975; Schubert, 1965; Segal and Cover, 1989; Segal and Spaeth, 2002; Tate, 1981!....
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TL;DR: Gates et al. as discussed by the authors applied concepts derived from neo-institutionalism to coalition behavior in state supreme courts, using a pooled cross-sectional time series design, and found that the amount of variation in dissent rates uniquely accounted for by the Neo-Institutional model is over six times that of the environmental model, while a composite model can explain more than one-third of the variation in state Supreme Court dissent rates for 1966, 1973, and 1981.
Abstract: This study applies concepts derived from neo-institutionalism to coalition behavior in state supreme courts, using a pooled cross-sectional time series design. Neo-institutionalism embraces rational choice assumptions about human behavior, with particular attention to how institutional arrangements shape purposive behavior. From this perspective, dissent, or the tendency to form less than unanimous voting coalitions, is viewed not merely as the collective expression of individual attitudes or policy preferences or the result of structural characteristics of institutions but rather as a complex interaction of values and structures. A model incorporating variables derived from the neo-institutional perspective was estimated with GLS-ARMA and compared to an environmental model generated from past research. The amount of variation in dissent rates uniquely accounted for by the neo-institutional model is over six times that of the environmental model, while a composite model can explain more than one-third of the variation in state supreme court dissent rates for 1966, 1973, and 1981. More importantly, however, all the relationships posited by the neo-institutional approach are statistically significant and in the expected direction. An institutional approach guided by rational choice theory offers an important contribution toward developing a more refined understanding of judicial behavior. T he propensity for appellate court judges to dissent is of particular interest to scholars of judicial politics. Open expressions of disagreement among the members of a court offer researchers the opportunity to examine the political motivations underlying judges' voting. Patterns of conflict and consensus also provide the necessary foundations for developing theories of judicial behavior. An extensive body of literature has been generated on the subject of dissent. Utilizing an institutional approach, the research on state appellate institutions has identified the presence of an intermediate appellate court as a crucial determinant of dissent in state courts of last resort. Various environThis research was truly collaborative. The authors are listed in random order. Earlier versions of this manuscript were presented at various conferences, and many helpful suggestions were offered. We wish to thank in particular John Gates, Gary King, Jeffrey Segal, and Dan Zimmer
169 citations
TL;DR: In this paper, attitudinal patterns of U.S. appeals court judges were investigated along with an analysis of the relationship of judges' backgrounds to their decisions and their voting behavior.
Abstract: In an earlier study of voting behavior of U.S. appeals courts judges, attitudinal patterns were investigated along with an analysis of the relationship of judges' backgrounds to their decisions. In this revisit, the earlier findings were treated as hypotheses and tested with a new case population covering a subsequent and longer time period. In all, 2,115 cases decided nonunanimously were coded on one or more issues. Most cases could be classified under ten broad issue categories which were then utilized for most of the analyses. Although the research design was similar to that of the earlier study, a wider variety of methods was employed including nonparametric and parametric intercorrelations of voting behavior on the ten issues and stepwise multiple regression and partial correla-tion analyses of seven background variables and their relationships to voting behavior on the issues. The principal findings were similar to those found earlier but it was possible to map voting behavior with some-what more precision and to uncover some unexpected relationships such as those concerning the potency of the age variable particularly for voting on political liberalism issues.
165 citations
TL;DR: Schubert's seminal work The Judicial Mind as discussed by the authors is a major attempt by the acknowledged dean of judicial behavioralists to explain both scientifically and unconventionally how Supreme Court Justices decide cases, concluding that the Justices who have sat on the Supreme Court since 1946 show a consistency of decision during their careers, that blocs of Justices may be identified by their responses to certain types of issues, and that the bloc with the greatest influence in any given term can be determined.
Abstract: The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices 1946-1963. By Glendon Schubert. Evanston: Northwestern University Press, 1965. Pp. 295. $10.00. The Judicial Mind1 is the major attempt by the acknowledged dean of judicial behavioralists to explain both scientifically and unconventionally how Supreme Court Justices decide cases.2 The commitment to a political science of judicial behavior is based on the premises that scientific social study is possible and that traditional constitutional scholarship is \"discursive commentary\" 3 which misses the real factors behind judicial decision, By scientific study, exponents mean research guided by an explicit theory, posing hypotheses with mathematical precision and objectivity which may be tested against real world evidence by an independent researcher.4 The Judicial Mind has received critical commendation for its analytical sophistication and novel conclusions, and has been hailed as a vindication of the genre.5 If they were not putatively rooted in a scientific analysis, Schubert's conclusions would seem modest. The summary findings are that the Justices who have sat on the Supreme Court since 1946 show a consistency of decision during their careers, that blocs of Justices may be identified by their responses to certain types of issues, and that the bloc with the greatest influence in any given term can be determined. Three blocs are most significant-the liberals (including Justices Black, Douglas, and Warren), the conservatives (including Justices Burton, Reed, and Vinson), and a moderating group referred to as \"the prag-
149 citations