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: This article explored the relationship between state socioeconomic and political environments and issues found in decisions of state courts of last resort and found that environmental variables are important predictors to the kinds of decisions rendered by courts, and highlighted the need for more systematic, comparative analysis of state judicial systems.
Abstract: The linkage between state socioeconomic and political environments and issues found in decisions of state courts of last resort is explored. It is found that, in general, state courts of last resort in rural, politically undifferentiated states tend to decide larger proportions of private litigation than courts within more highly industrialized, politically competitive states. These latter courts of last resort tend to focus upon criminal law, civil liberties, and economic regulation cases. Multiple regression analysis shows that the six environmental descriptors and one court system variable-the presence or absence of an intermediate appellate court-explain a substantial portion of the variance in the distribution of issues among the states. The study demonstrates that environmental variables are important predictors to the kinds of decisions rendered by courts, and underscores the need for more systematic, comparative analysis of state judicial systems. A considerable body of research published in the last several years has demonstrated the important effects of socioeconomic and political diversification upon political processes and policy outputs. (Dye, 1966; Sharkansky and Hofferbert, 1972). Yet little research has been conducted on the impact of environmental differences on judicial processes and policy. This is not to suggest, however, than the linkage between environmental conditions and courts has been totally ignored. On the contrary, most models of the judicial processes make some reference to this linkage, and the systems model in particular underscores the effects of the flow of demands and conflict from the environment towards the judicial system. (Sigler, 1968; Goldman and Jahnige, 1970). However, while reference is often made to these relationships, the literature is still devoid of empirical research that systematically examines the impact of environment upon judicial action. To remedy this omission, the present study will offer a comparative examination of the relationship between socioeconomic and political conditions within the fifty American states, on the one hand, and issues decided by state courts of last resort on
45 citations
TL;DR: In this paper, the authors report the findings of their research on how caseload size affected the structure and business of American state supreme courts from 1870 to 1970, as revealed by selected quantitative measures.
Abstract: The past century has seen a striking variation in the size of state supreme courts' caseloads-the number of appeals they hear and opinions they write. Some courts' issued 500 opinions or more in a single year; others wrote fewer than 100. A single court's caseload sometimes doubled from one decade to the next and then declined again. This Article reports the findings of our research on how caseload size affected the structure and business of American state supreme courts from 1870 to 1970.2 These findings derive from a study of state supreme courts, as revealed by selected quantitative measures. We have asked: How many cases did these courts decide? And what kinds? What types of litigants did they serve? How did their work change over the years? How did it differ from state to state? What do the changes suggest about the direction of state supreme court development and about the causal links between social conditions and legal change?
44 citations
TL;DR: In the case of the U.S. Supreme Court, this article showed that assignment of the majority opinion to the marginal member of the minimum winning original coalition might not ensure its survival.
Abstract: Conventional wisdom about the U.S. Supreme Court states that assignment of the majority opinion to the marginal member of the minimum winning original coalition might ensure its survival. Insofar as minimum winning original coalitions on the Warren Court are concerned (which original coalitions were identified by reference to the justices' docket books), the conventional wisdom is wrong. Although the marginal justice is substantially advantaged in opinion assignment, coalition maintenance is not thereby enhanced. Indeed, the breakup of such coalitions disproportionately occurs when the marginal justice switches his vote to the other side. Moreover, when he changes sides, he nonetheless retains the majority opinion. Assignment of the majority opinion to original coalition members other than the marginal justice did not foster the original coalition's survival either.
39 citations
"Explaining Dissent on the Supreme C..." refers result in this paper
...This conclusion is particularly strong in studies of the US Supreme Court; both the most vocal advocates of the attitudinal model ~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.,…...
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Book•
27 Dec 2008
TL;DR: Songer as discussed by the authors examined the impact of institutional changes on the proceedings and decisions of the Supreme Court of Canada from 1970 to 2003 and found that the Court has remained a politically moderate and democratic institution despite its considerable power and influence.
Abstract: In the last half-century, the Supreme Court of Canada has undergone major upheaval. The most drastic change occurred with the adoption of the Charter of Rights in 1982, which substantially increased the Court's role in resolving controversial political and social issues. The Transformation of the Supreme Court of Canada examines the impact of institutional changes on the proceedings and decisions of the Court from 1970 to 2003. The first book on the Supreme Court to incorporate extensive in-depth interviews with former justices, this study provides both insiders' accounts of how decisions are made and an empirical analysis of more than 3,000 Court decisions. Drawing on this extensive commentary and statistical data, Donald R. Songer demonstrates that the Court has remained a politically moderate and democratic institution despite its considerable power and influence. The most comprehensive account of its kind to date, The Transformation of the Supreme Court of Canada makes a significant contribution to the literature and will be of particular interest to scholars and students of judicial behaviour and comparative law.
37 citations
TL;DR: This paper analyzed a data set consisting of all non-unanimous published Supreme Court decisions for the period 1949 to 2000 and found that since the Court gained substantial docket control, the types of cases the Court hears has changed from the period studied by Tate and Sittiwong.
Abstract: . This study seeks to add to the current understanding of the political nature of the Supreme Court of Canada. We analyze a data set consisting of all nonunanimous published Supreme Court decisions for the period 1949 to 2000. A prior study by Tate and Sittiwong (1989) suggested a model of judge attributes for the period 1949 to 1985. We build on that analysis by extending the time period to 2000, which allows the impact of gender also to be assessed. We find that since the Court gained substantial docket control, the types of cases the Court hears has changed from the period studied by Tate and Sittiwong. In the more recent period, civil rights and liberties cases are much more substantial in number. We conclude some of the variables in the Tate and Sittiwong study may be time bound and we suggest a new model of attitudinal voting.Resume. Cet etude cherche de augmenter le savoir courant du le nature politique du Cour supreme du Canada. Nous analysons un ensemble de donnees non unanime compose de tout decisions publie du Cour supreme entre les annees 1949 a 1985. Une enquete precede fait par Tate et Sittiwong (1989) a propose un modele des attributs des juges pour la periode entre 1949 a 1985. Nous poursuivons laquelle analyse pour prolonger la periode du temps jusqu'a 2000, ce que on permettre evalue l'effet du sexe aussi. Nous trouvons que comme le Cour a conquis considerable control du registre, les gendres dossier entendre par le Cour ont change depuis le periode de enquete de Tate y Sittiwong. Pendent le periode plus recent les dossiers concernant les droits civiles et libertes sont beaucoup plus nombreux. Nous concluons que possiblement, quelques variables de l'enquete du Tate et Sittiwong soient liees par le temp et nous proposent un modele neuf des votes attitudinal.
36 citations