Showing papers on "Judicial opinion published in 1998"

Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning

Abstract: In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical legal problem, the authors have produced an unprecedented empirical study of judicial reasoning in action. By exploiting this treasure trove of data, the authors have looked deeper into the judicial mind and observed the emergence of influences upon the manner in which a judge examined the constitutional issues, adopted a constitutional theory, and engaged in legal reasoning.

The WTO Legal System: Sources of Law

Abstract: Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

‘A Corporation of Superior Prostitutes’ Anglo-Indian Legal Conceptions of Temple Dancing Girls, 1800–1914

Abstract: Contemporary historians imagine reformist activity relating to women in colonial India as a series of public debates scattered across the nineteenth century. Whether such historians discuss sati, widow remarriage, the Rakhmabai case or the Age of Consent controversy, they privilege highly specific vocabularies of contestation, forms of argument and forums of expression. Judicial reformist activity, occurring incrementally within the technical vocabularies of law, tends largely to be disregarded. This disregard is hardly new. Anglo-Indian judges themselves recognized that their reformist activity was shielded from scrutiny when they boasted that ‘judicial decisions have silently promoted the cause of female emancipation and progress.’

Reconciling Extradition with Human Rights

Abstract: The human rights movement, which has had such a powerful impact on international law and relations in the post—World War II period, has in recent years turned its attention to extradition. Treaties, executive acts and judicial decisions on extradition have all been affected. At the same time, transnational and international crime has increased. The international community has responded by creating new institutions and expanding the network of bilateral and multilateral treaties designed to outlaw transnational crime, promote extradition, and authorize mutual assistance. Inevitably, there is a tension between the claim for the inclusion of human rights in the extradition process and the demand for more effective international cooperation in the suppression of crime, which resembles the tension in many national legal systems between the “law and order” and human rights approaches to criminal justice. As in domestic society, it is necessary to strike a balance between the two so as to establish a system in which crime is suppressed and human rights are respected. This was stressed by the European Court of Human Rights in the leading case on extradition and human rights, Soering v. United Kingdom, when it stated: [I]nherent in the whole of the [European] Convention [on Human Rights] is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interests of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.

Least Restrictive Environment Understanding the Direction of the Courts

Abstract: A clear understanding of judicial opinions is essential to individuals responsible for providing children with disabilities with an appropriate program within a least restrictive environment (LRE). To assist in achieving this understanding, the purpose of this paper was twofold: (a) to identify and delineate the LRE standards established within federal circuit courts and (b) to create an alternative, more comprehensive, standard that reflects the explicit mandates of the Individuals with Disabilities Education Act of 1990. In addition to a current overview of LRE court decisions and specific legal issues, the similarities and differences of four standards are discussed.

Judicial discretion in the House of Lords

Abstract: Preface 1. Politics and Judicial Discretion 2. A Statistical Analysis of Judicial Discretion 3. Judicial Methodology in Statutory Interpretation 4. Judicial Methodology and the Common Law 5. In Re Pepper v Hart: Comments on the nature of Laws 6. Pure Policy - The Law of Negligence 7. Imposing Rationality on the State 8. Public Law and the Liberty of the Person 9. Judicial Review as Welfare Management 10. Conclusion - Legal Argument and Politics Index

Expanding the Integrated Model of Judicial Decision Making: The California Justices and Capital Punishment

Abstract: This study of the death penalty decisions made by justices of the California Supreme Court between 1979 and 1990 elaborates on the integrated model used to explain judicial behavior. Specifically, the interactive effects of judicial ideology, case characteristics, the political environment, the dynamic effects of legal issues, and the effects of retention elections are explored. The model does provide a useful explanation of judicial behavior. In addition, this study indicates that the effects of legal arguments and case facts are conditioned by judicial ideology, that the effects of legal issues change over time, and that electoral pressures do not have a uniform effect across judges.

The development of a legal rule : The federal common law of public nuisance

Abstract: Scholars from across disciplinary lines are interested in understanding legal development. One impediment to the quest for a systematic explanation has been measures of legal change. Indicators like whether a court overturns an earlier ruling capture one facet of legal change but fail to capture the full range of courts' actions to develop legal doctrine. I introduce an alternative measure of legal change here-one based on Levi's (1949) focus on whether factual circumstances are or are not encompassed by the law. I use the U.S. Courts of Appeals decisions on the federal common law of public nuisance to illustrate this measure. Utilizing a multinomial logit model to explore the appellate judiciary's decisions to develop this legal doctrine, I find that the judges' decisions to develop the federal common law are explained by the judges' policy preferences; the litigation environment consisting of party resources, attorney experience, and amicus support; as well as the broader political context of public opinion and Supreme Court rulings. Judicial scholars have not often systematically examined changes in the courts' policy product-legal rules (Epstein & Kobylka 1992; Walbeck 1997). While Spaeth (1965) and others (Peltason 1955; Schubert 1965) state their preference for moving away from doctrinal analysis, imbued as it often is in normative issues, the policy significance of legal rules adopted by courts has not been ignored. Indeed, Segal and Spaeth (1993:261) recognize that the Supreme Court's opinion "constitutes the core of the Court's policy-making process." This is because court opinions affect more than the parties to the current litigation. The rules articulated bv courts, like other institutions, guide behavior by providing information about mutual expectations and providing sanctions for noncompliance (Knight 1992). Hurst (1956), in discussing the development of law governing the institution of private property, maintained that "legal procedures and tools and legal compulsions. . . create a framework of reasonable expectations within which rational decisions could be taken for the future" (pp. 10-11). As Justice Holmes put it, a person's compliance with his or her legal duty is based on "a prophecy that if [that person] does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money" (1897:461). In this respect, court decisions derive significance from the impact of their rules on expected patterns of behavior and their sanctions for violations of those patterns. If the policy significance of court decisions lies in the legal rules they contain, it is important to understand what influences the law's development. Although there are numerous accounts of events surrounding important court decisions (see, e.g., Faux 1988; Friendly 1981; Kluger 1975; Lewis 1964), few systematic attempts have been made to examine legal development. Some scholars have studied the Supreme Court's decision to overturn past decisions (Brenner & Spaeth 1992; Kemper 1997; Spriggs & Hansford 1998). These studies examine explanations for whether the Court overturns a particular decision. Epstein and Kobylka (1992) examine doctrinal change in the Supreme Court's abortion and capital punishment decisions, exploring the influence of the Court's composition, the political environment, and the arguments presented to the Court by the litigants and amici. I have developed a measure of legal change and applied it to the Supreme Court's search and seizure decisions to test the influence of judicial preferences, the litigation environment, and the political environment (Wahlbeck 1997). These studies all investigate legal development in the Supreme Court but overlook the substantial role played by lower federal courts in the formation of legal doctrines. As reflected in the judicial impact literature, much of legal development occurs in the lower courts. The judicial impact literature reveals that lower courts often have substantial authority to modify the law (Mather 1995; Murphy 1959). …

Argument by Analogy In Europian Law

Abstract: ARGUMENT by analogy is one of the oldest methods of decision making. Whenever the similarity between two situations induces someone to decide one case like another, an analogy is drawn. Argument by analogy also forms an integral part of legal reasoning. Arguably, every legal tradition employs some version of it to justify judicial decisions. European law has only just started to develop its own distinct jurisprudence. As the various judicial systems present in the European Union struggle for recognition of their legal heritage, the way in which arguments by analogy will be used on an European level is likely to combine different approaches.

Political Structure and Corporate Governance: Some Points of Contrast between the United States and England

Abstract: Viewed against the backdrop of European company law generally, the U.K. and U.S. systems of corporate governance are remarkably similar. However, there are several salient differences between the system, including rules on derivative litigation, and those on corporate takeovers. The U.K. has a new robust and less regulated takeover market than the U.S., while the United States is more permissive towards derivative litigation. This paper explains the differences as a function of politics. In the United States, where corporate law is dominated by state governments, the political forces aligned against hostile takeovers are quite potent, generating legislation and judicial decisions that have suppressed takeover activity. In the United Kingdom, with a more unitary system, the political forces play out differently, and the system accordingly generates rules more accommodating to unfriendly takeovers. With respect to derivative litigation, the differences stem largely from the political influence of the organized bar. Because the U.K. system does not recognize contingency fees, there is little constituency in the organized bar pushing for liberalization in the rules governing derivative litigation. In the United States, in contrast, the "common fund" doctrine permitting attorney compensation out of the amounts generated for the benefit of the corporation has created a strong interest group within the organized bar that favors a relatively liberal scope for the remedy.

The Application of Judicial Intelligence and ‘Rules’ to Systems Supporting Discretionary Judicial Decision-Making

Abstract: This article critically examines approaches to the production of systems of support for discretionary judicial decision-making in sentencing. The aim of the article is to attempt to illuminate the character of discretionary judicial decision-making and how academic research has informed the attempt to model the exercise of judicial discretion. Briefly placing the development of decision support systems for judicial sentencing in the context of world-wide themes in sentencing reform, the article proceeds to focus on various attempts to produce systems of decision support for sentencing. It then briefly explores two of the key issues (‘impact’ and ‘institutional authority’) which may determine the future support of such systems. If systems of decision support for judges are to have a future then they must not only be accepted at an institutional level, but also be seen as valuable by those for whom they are designed. Thus, the application of ‘judicial intelligence’ is unavoidable. Underlying the judicial sentencing decision process is some conception of ‘similarity’ between cases. How, then, should this ‘similarity’ be represented? Traditionally, representations of similarity have tended to be informed by ‘the legal-analytical’ paradigm. The supposedly basic building blocks of case information (‘offence’ and ‘offender’ and ‘aggravating and mitigating’ factors) are critically considered. It is argued that systems based on a ‘legal-analytical’ paradigm are limited in their representation of the decision process. These limitations, it is suggested, may be overcome by adopting an approach which tries to represent the informal schema of understanding which decision-makers employ and the holistic way in which they think about a case. It is argued, therefore, that judicial decision-making is amenable to modelling through the use of computer technology, but that there is a need to re-model our conception of judicial ‘intelligence’ on which such technology relies.

On Behalf of the Condemned? The Impact of the NAACP Legal Defense Fund on Capital Punishment Decision Making in the U.S. Courts of Appeals:

Abstract: There is a rich history of scholarship demonstrating that interest groups have influenced judicial policymaking, but there has not been a systematic test of whether a single group has contributed to case outcomes over an entire policy area while controlling for other elements of judicial decision making Additionally, the degree to which extra-legal factors dominate a group's ability to influence judicial policy has not been explored sufficiently Finally, there needs to be an empirical test of the extent to which elements of judicial decision making affect an interest group's choice to litigate This study examines these questions by assessing the NAACP- Legal Defense and Education Fund's (LDF) contribution to the population of 217 capital punishment cases decided in the US Courts of Appeals This article finds that when considered in light of the judicial decisionmaking context, the LDF is not a significant factor influencing case outcomes Moreover, an interaction model suggests that the LDF's ability to affect case outcomes is controlled largely by extra-legal factors Finally, there is no evidence that the LDF's decision to litigate follows a pattern based on this judicial decisionmaking context These findings should prompt future scholars researching a group's litigation campaign to examine his/her subject in the framework of the judicial decision-making process instead of in isolation When David Truman (1951: 479) wrote that "the activities of judicial officers of the United States are not exempt from the processes of group politics," he recognized interest group litigation as a legitimate focus for political science Despite its supposedly counter-majoritarian nature, the federal judiciary, like the popularly accountable branches, is subject to group pressure Subsequent research has uncovered how interest groups influenced the federal judiciary by filing amicus curiae briefs in cases where the group has a stake in the outcome (Caldeira and Wright 1988: 1990; Epstein 1985; Krislov 1963; Kuersten and Songer 1994; O'Connor 1980; and O'Connor and Epstein 1982, 1983), and sponsoring cases in order to achieve a political end (Epstein 1985; Greenberg 1977, 1994; Ivers 1995; Kluger 1975; Manwaring 1962; Meltsner 1973; O'Connor 1980; O'Connor and Epstein 1984; Tushnet 1987; Vose 1958, 1959; Wenner 1982) Once it recognized interest groups as a viable part of the judicial process, the public law field began to explore the extent that interest groups influence policy outcomes in the federal judiciary This article addresses this question and related issues by examining the NAACP Legal Defense Fund's (LDF) impact on capital punishment decisions in the US Courts of Appeals EARLY INTEREST GROUP STUDIES At the vanguard of interest group litigation research is Vose's (1959) study of the NAACP's campaign to end racially restrictive housing covenants Vose forced scholars to reexamine this presumably private litigation battle as a conflict distinguished by a public interest group struggle as fierce as the ones taking place in legislatures Although Vose focused on a political aspect of litigation-interest group activity-he still framed his analysis in the legal model, which perceives judicial decision making through the lens of legal doctrine According to the legal model, the manner in which judges apply precedent to a set of facts and their methods of interpreting statutes and the Constitution are the principal determinants of Judicial decision making1 For African Americans seeking housing equality, the federal judiciary was the best forum in which to wage their fight because success in that branch was not a function of political and electoral strength, fields in which they were lacking Instead, a skillful legal argument and strategy were the major prerequisites to victory in the federal judiciary Vose's group litigation concept was extended by studies operating under the political disadvantage theory, which held that certain groups litigate because they are handicapped in the popularly accountable branches of government …

The enchantment of reason

Abstract: "The Enchantment of Reason" is a lively critique of American legal thought and the American legal system's deification of reason. In an attempt to understand the current malaise of American law and the depressed condition of American intellectual life in general, Pierre Schlag diagnoses what he believes is an epidemic of pathological reliance on the principle of reason. Contending that legal thinkers continually fail to recognise the aesthetic and ethical prejudices of rationalism, Schlag creates a genealogy that shows how the call to reason has become a manipulative vehicle of power, faith, and prejudice. In examining the fierce resistance to questioning reason's primacy, this renowned critic and professor of American law demonstrates how those who use and study the law perpetuate their own methodological blind spots. Claiming that reason has been endowed with a virtually mystical power to organise social life, Schlag unravels the seemingly rational world of judicial opinions, statutes, doctrines, and legal principles. In the process, he paints a shocking - and sure to be controversial - picture of the chaos and, indeed, violence of the American legal tradition. This bold commentary on the irrationality of reason in American law and legal studies will interest not only legal scholars and philosophers but also serious thinkers across a broad disciplinary spectrum.

Crime and Social Control: An Introduction

Abstract: Introduction. 1: Police Roles and Techniques. 2: Police Discretion and Differential Policing. 3: Law, Courts and the Legal Profession. 4: Due Process and Access to Justice. 5: Judicial Decisions and Sentencing. 6: Punishment and Penalty. 7: Incarceration and Prisonisation. 8: Diversion and Alternative Dispute Resolution. 9: Community Crime Prevention. 10: Victims of Crime. Conclusion

The Miranda Debate: Law, Justice, and Policing

Abstract: This cogent, well-balanced anthology contains a diverse range of key writings on the complex issues raised by the United States Supreme Court's controversial 1966 ruling in Miranda v. Arizona. One of the most significant and influential judicial decisions on criminal procedure, Miranda remains at the forefront of today's debate about defendants' constitutional rights and crime control. The book contains four sections, each with an introduction by the volume editors that places the essays within a broader social context. The first section reviews the pre-Miranda law of confessions, Ernest Miranda's crime and his victim, the Miranda decision, and the ways in which the courts and police adjusted to the ruling. The second section explores the ethical, legal, and public policy dimensions of Miranda. Section three examines how Miranda works (or doesn't work) in the real-world setting of police interrogation and considers radically different interpretations of the empirical evidence. The book concludes with insightful discussions on the challenges and dilemmas that are likely to shape the future of Miranda.

Human rights in Tanzania: The role of the judiciary.

Abstract: This thesis examines the performance of the Tanzanian judiciary in enforcing human rights both during the colonial period and after independence. The study focuses on the period after the enshrinement of the Bill of Rights in the Constitution, in 1985. The aim of this work is to appraise both the present attitude of the judiciary and the reaction of the government to court decisions relating to human rights issues. In order to achieve this I conducted a six months field study in Tanzania during which I examined more than a hundred cases (the majority unreported) and interviewed a large number of people involved with the administration of justice. The conclusion we draw from this research is that the government's reluctance to amend its laws to bring them into conformity with the Bill of Rights, underscores the need for judicial activism in Tanzania. It is a disservice to human rights for the majority of Tanzanian judges to adopt a positivist approach which prevents meaningful developments of human rights. Paradoxically, despite this conservatism, the government's attitude towards court decisions remains distrustful. Without a change in the attitude of both the courts and the government towards human rights, the Bill of Rights in the Constitution may not serve any meaningful purpose. Thus this thesis serves to remind both the Tanzanian judiciary, and the executive, of their obligation to protect individual fundamental rights. After four chapters dealing with the administration of justice prior to the enshrinement of the Bill of Rights in the Constitution, chapters five and six examine respectively, the relevant courts decisions in criminal and civil matters. Chapter seven considers the government's response to these judicial decisions and chapter eight contains our conclusions and also makes recommendations as to the way forward.

Nuclear weapons and the World Court

Abstract: Is the threat or use of nuclear weapons ever permissible? This question was, at the request of the United Nations General Assembly, put before the International Court of Justice in 1996 for an advisory opinion. An evenly divided Court concluded that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law" -not an outright condemnation, but certainly strong enough to set in motion the serious initiative to outlaw nuclear weapons currently before the nations of the world. The Court's advisory opinions are considered non-binding, and yet this is the only statement by the world's highest tribunal on this question. Thus, as the only authoritative pronouncement on the subject, it carries great weight for the future of nuclear weapons and international law itself. In a broader sense, the Court's Opinion has considerable significance regarding the future of the international order and even the survival of humanity. In an historical context, the authors of this deeply engaged book examine the Court's Opinion and the logic leading to its conclusion. They study the implications of the Opinion for the future of nuclear weapons policy, the law of armed conflict, and the role of the Court's advisory jursidiction, especially on issues that affect the future of humanity. They also study separate and dissenting opinions, as well as the role of citizens groups in bringing this crucial question before the Court.

Judge Sir Gerald Fitzmaurice and the discipline of international law : opinions on the International Court of Justice, 1961-1973

Abstract: Preface. Foreword. Introduction. I: The Making of an International Judge. 1. Government Service. 2. The Writer and Scholar. 3. The International Law Commission. 4. Fitzmaurice at The Hague. 5. Fitzmaurice and the Common Law Tradition. II: Fitzmaurice's Contribution to the Jurisprudence of the International Court. 1. Jurisdiction. 2. Admissibility. 3. Particular Questions of International Law. 4. The Law of International Organisations. 5. Interpretation. 6. Judicial Philosophy. III: After The Hague: Fitzmaurice's Later Work. 1. Fitzmaurice at Strasbourg. 2. The International Arbitrator 1: The Beagle Channel Case. 3. The International Arbitrator II: The Aminoil Case. 4. Fitzmaurice's Final Publications. 5. Conspectus: Fitzmaurice and Contemporary Legal Culture. Bibliography of the Principal Publications of Sir Gerald Fitzmaurice. Judicial Opinions of Sir Gerald Fitzmaurice: Selected Extracts.

Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil or Window on the World?

Abstract: between health insurer and insured has remained relatively untested empirically. There has been considerable research on access to health insurance and its cost, but relatively little on how insurance operates for those who have it. Studies which have been performed tend to focus on one important subset of coverage issues—disputes regarding the “medical necessity” of treatment or its “experimental” or “investigational” character—and apply an even narrower method: explaining the legal system by examining the written opinions of courts in cases they have decided. A recent example of this genre is an ambitious, methodologically sophisticated, two-year investigation headed by Mark A. Hall and Gerard F. Anderson, and funded by the Federal Agency for Health Care Policy and Research (the “Hall study”). The Hall study was designed to test several 2

Judicial Decisions and Artificial Intelligence

Abstract: In order to start a discussion concerning the possibility of applying AI models to judicial decisions, a necessary preliminary step is to refer to some theoretical frameworks concerning the practice of judicial decision-making and the reasonings made by judges. Of course this is not a matter of free choice or of individual preferences: what is needed is to determine which theoretical approach may produce the relatively best approximation to the empirical phenomenon of decisions made in the context of the administration of justice. This is an extremely complex and difficult problem. On the one hand, the experience of the various judicial systems (and even within a given single system) shows that judicial decision-making includes an almost infinite range of variations. The factors influencing the ways in which judicial decisions are made are numerous and include for instance the format and size of the court (single judge or panels, and so on), the composition of the court (professional and/or lay judges), several procedural rules, the factual circumstances of cases, the form and content of the substantive rules governing the case, the evidence available and the methods and standards used to decide on facts according to the proofs and to solve legal issues according to the relevant rules and principles.

'Neutrality', 'choice', and 'ownership' in the construction, use, and adaptation of judicial decision support systems

Abstract: This article examines the character and future of Judicial Decision Support Systems (JDSS's) in relation to the activity of judicial sentencing. There are many varieties of JDSS which could be applied to sentencing. However, in terms of attracting judicial and political commitment 'Sentencing Information Systems' seem to be emerging as the predominant JDSS model. This model stresses values of data neutrality; judicial choice; and, judicial ownership of sentencing practice and sentencing reform. The article proceeds to examine the 'flip side' of each of these values. It discusses the reasons for the apparent neutrality of SIS data arguing that this 'neutrality' is necessarily a construction based in sentencing research. Examining the value of judicial choice in whether or not the system should be consulted, the article presents results of evaluation of the extent and nature of use of the Scottish Sentencing Information System currently being operated by High Court judges. There is some reason to believe that previous Canadian experience may not necessarily be replicated elsewhere, although it is still early in the history of the Scottish project. Finally, the article considers the ability to retain judicial ownership of the system and public access arguing

Necessary corrections according to judicial opinions 16, 48 and 52.

Abstract: Some proposals are made in agreement with some Judicial Opinions placing names in the lists of conserved or rejected names.

Judicial Sentencing Policy, Criminological Expertise and Public Opinion*:

Abstract: The first part of this article asks whether judicial sentencing can be regarded as founded on a well-informed policy. An analysis of the character of sentencing policy as it is to be found in sente...

Multiple personality disorder in the courts: A review of the North American experience

Abstract: Multiple personality disorder has increasingly been encountered in the forensic setting in North America over the past 20 years, in particular in relation to competency hearings and insanity defences. The particular legal problems that have arisen are reviewed, the most significant US cases and judicial decisions are explored, and their implications for issues of responsibility, individuality and punishment are discussed.