Showing papers on "Judicial opinion published in 2003"

Common Law, Common Ground, and Jefferson's Principle

Abstract: Thomas Jefferson's famous argument that "the earth belongs to the living" - and therefore no generation has the right to rule another - is a standing challenge to anyone who believes that written constitutions (or, in many instances, statutes) are binding. Most answers to Jefferson's challenge rely, in one way or another, on a claim that being an American means owing an obligation of some kind to previous generations. These accounts should not be disparaged, but in a large and heterogeneous nation the obligation to adhere to decisions made decades or centuries ago should rest on something less contested. Our written Constitution performs two functions that justify adherence to it, without relying on a contested conception of American citizenship. First, the text, and the judgments of those who wrote and ratified it, are a source of precedents, roughly on a par with certain judicial decisions. Second, the text provides what game theory calls a "focal point": it establishes common ground on questions (such as the length of a President's term) that need to be settled one way or another. There are no other justifications, beyond these two, for requiring adherence to the text of a document adopted long ago. But this account helps explain current practices that might otherwise seem unjustifiable: an emphasis on the words of the text often without regard to the intentions of the drafters, as evidenced, for example, in the debate over the incorporation of the Bill of Rights; the highly selective use of historical sources (what is often called "law office history"); the fact that the text of the Constitution matters most for issues that are the least important; and popular attitudes about constitutional amendment.

Court of Public Opinion: Government Accountability and Judicial Independence

Abstract: This paper contributes judicial politics literature by analyzing the conditions under which the public's ability to hold the elected government accountable might enable courts to exercise independent authority over policy. Using a model of policy-making in a system characterized by formal separation of powers, judicial dependence on government support, asymmetric information between the voters and the government, and political accountability of the policy branch, I show the conditions under which the public will force the government to cede power to the courts. This formal analysis makes three contributions to the literature. First, the model provides a theoretical justification for, and suggests limits to, the common assumption that disregard for judicial decisions is politically costly for the elected branches. Second, the model suggests a systematic account for a number of empirical observations about judicial politics. Third, the model demonstrates how systems of unified or separated powers can emerge endogenously.

Why Judicial Elections Stink

Abstract: Those who are concerned about judicial independence and accountability in the United States quite rightly focus their attention on state judicial election campaigns. It is there that the most sustained and successful efforts to threaten judicial tenure in response to isolated, unpopular judicial decisions have occurred; and it is there that escalating campaign spending has created a public perception that judges are influenced by the contributions they receive. Attempts to address these problems have been undermined by four political realities that the author refers to as “the Axiom of 80”: Eighty percent of the public favors electing their judges; eighty percent of the electorate does not vote in judicial races; eighty percent is unable to identify the candidates for judicial office; and eighty percent believes that when judges are elected, they are subject to influence from the campaign contributors who made the judges’ election possible.

Dynamic legal database providing historical and current versions of bodies of law

Abstract: A hierarchical arrangement of hyperlinked, structured documents collectively provide a table of contents (TOC) to the subject, which may be a statutory body of law such as the United States Code (Figure 5). Sections of the Code are stored in associated with temporal information such as date of enactment, effective date and termination date. A researcher can then access the version of the Code in effect at any particular time. Other information stored in association with a part of a body of law may include historical information, commentary, annotations, descriptive information, legislative history, references, and/or links to laws, judicial decisions and other information.

The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court

Abstract: Introduction 906 I The Norm of Prior Judicial Experience 909 A Evidence for the Existence of the Norm 909 B Career Homogeneity Resulting from the Norm 917 1 Occupation at Time of Appointment 918 2 Homogeneity of Career Paths 927 C D iscussion 937 II The Importance of Diversity in Institutions 941 A A General Argument for Diversity 942 1 Diversity in Collective Decision-Making Bodies 944

Separate Opinion Writing On The United States Courts Of Appeals

Abstract: In this article, we set ourselves to the task of identifying the determinants of separate opinion writing on the U.S. Courts of Appeals. Utilizing a new institutional theoretical framework, we evaluate a series of hypotheses concerning the connection between separate opinion writing behavior and attitudinal, institutional, and legal factors. Within this broad theoretical framework, we are particularly sensitive to the manner in which judges may advance certain goals through authorship of separate opinions. We find that judges’ policy preferences, case salience, and collegiality norms all affect the likelihood that a judge will write a separate opinion. Our research provides additional support for integrated models of judicial decision-making that take into account institutional, attitudinal, and legal influences on judicial behavior.

Gay Rights and American Law

Abstract: 1. Introduction The context of the study The cases Case outcome variation by court system and subject matter Geographic variation Temporal variation 2: Case narratives Child custody, visitation, adoption, and foster care (CVAF) Lesbian and gay family issues not involving CVAF Cases adjudicating sexual orientation discrimination claims not related to lesbian and gay family issues Gays in the military Cases adjudicating the constitutionality of consensual sodomy and related Solicitation statutes and their Enforcement against gay people Cases adjudicating the free speech and free association rights of gay people Miscellaneous cases essential to lesbian and gay rights Same-sex sexual harassment Defamation involving homosexuality Miscellaneous cases not essential to lesbian and gay rights Conclusion 3: The lesbian and gay rights claims models The statistical analysis Findings Applying the models Answers to questions posed in chapter 2 Model performance Conclusion 4: Judicial federalism and the 'myth of parity' Judicial federalism variables Findings Conclusion 5: A test of stare decisis The legal literature The political science literature Lesbian and gay rights claims and precedent Test one Test two Caveats Conclusion 6: Conclusion Location, location, location The promise of the states The value of diversity on the bench Time is on our side, Yes it is! The vital role of interest groups The power of precedent Democrats, republicans, and gay rights The forces motivating judicial decision making The quantitative study of rights and of law Epilogue.

The Politics of Judicial Elections: The Influence of Campaign Contributions on the Voting Patterns of Texas Supreme Court Justices, 1994–1997

Abstract: As preparations for the 2004 elections begin, many candidates for judicial positions will start the process of advertising their candidacy, raising money and in general, running a political campaign to obtain a legal position. Legal scholars question whether or not campaign contributions corrupt the judicial process by forcing justices to consider the preferences of campaign contributors during the decision-making process. It is an important question, and as such I examine the influence of campaign contributions on judicial decisions. Specifically, I examine decisions made by the Texas Civil Supreme Court between January 1994 and June 1997 in cases dealing with two business litigants and determine if there is a systematic relationship between those decisions and the interests of campaign contributors, controlling for factors such as judicial ideology, type of case, and decision timing. Using logit regression, I find empirical evidence suggesting that the justices are influenced by the preferences of campaign contributors. Moreover, I am able to establish a loose causal link between contributions and decisions that indicates that decisions follow dollars.

“The Jurisprudence of the Arrêts”: Marital Union, Civil Society, and State Formation in France, 1550–1650

Abstract: During the 1500s and 1600s when state building in France depended on the government's ability to staff administrative and judicial offices, prime candidates emerged from the famous law schools. Steeped in new research methods favoring a documentary base, Jurists focused legal studies on the French past, rather than a Roman one, and fostered historical and comparative views of society, law, and nation. Searching in archives for customs and laws, they wrote histories tracing the development of French institutions, including the Parlement of Paris, and devised civic rituals to articulate French constitutional precepts in that court. Practicing law as well, they collected “notable arrets” (judicial decisions) on questions of law, advanced legal theories and legislative projects, and facilitated the circulation of legal knowledge within a general public caught up in judicial activism born of social change and political necessity. By challenging operative facets of two great legal systems in the western world, Roman law and Canon law, and by amending French Customary law, they developed a system of “French jurisprudence” and legally framed a “civil society” that underwrote the claim to political sovereignty as a nation.

Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary

Abstract: This paper addresses the evolution of metaphors for the Internet and shows how they have constrained and determined the development of cyberlaw Within the law, metaphors mold the framework of discourse, determining the scope of appropriate questions about and answers to various social and legal problems Courts and commentators employ metaphors as heuristics to generate hypotheses about the application of law to novel, unexplored domains Metaphors structure the way lawyers conceptualize legal events, as they infiltrate, consciously and unconsciously, legal discourse Under the classic formalist view of common law analogy as syllogism, analogical reasoning from precedent begins with the establishment of a rule behind a case or group of similar cases Judges then apply the rule fairly mechanically to the case at hand to yield a result that is understood through the background of precedent In contrast to figurative literary metaphors, highly structured analogical, metaphorical mappings may be used to make persuasive, logical arguments Like all metaphors, however, legal metaphors possess a paradoxical quality, embodied in the constant tension between the legal metaphor's literal incongruence and metaphorical congruence with reality Metaphors whose metaphorical congruence with reality is perceived as dominant, such as the "marketplace of ideas" metaphor in First Amendment jurisprudence and the "bundle of sticks" metaphor in Takings clause jurisprudence, will continue to have analogical value and will be perpetuated through judicial opinion and scholarly commentary Conversely, legal metaphors erceived as having greater literal incongruence with reality, such as the slavery metaphor of African Americans as chattels, will lose their value and be discarded While metaphors aid humans in comprehending abstract concepts and legal doctrines, they also may limit human understanding by selectively highlighting various aspects of an issue while suppressing and marginalizing others Unreflective use of metaphors can lead lawyers to take for granted the "realities" that metaphors enable A bad metaphor can also simply lead to bad decision making For example, Cass Sunstein argues that the "marketplace of ideas" metaphor has turned the right to free expression into a degraded form of commerce This paper seeks to explore the evolution of metaphorical inferences as applied to the Internet within legal commentary and judicial opinions Three metaphors in particular will be examined: the information superhighway, cyberspace, and the Internet as "real" space Given the Internet's ongoing evolution as an unstable and ever-changing technology, courts and commentators have faced perpetual difficulty in mapping metaphors to it Changing social constructions of the Internet as necessitated by its evolving underlying technological architecture have supported, or conversely eroded, a particular metaphor's literal congruence with reality The purpose of this paper to make transparent the different conceptions of the Internet courts and commentators are sub silentio employing, and the various sociological, technological, and ideological conceptions of the world that support them

Mediated Popular Constitutionalism

Abstract: At present many theorists advocate some version of popular constitutionalism. Although commentators differ, and not all theories are well-defined, the central idea is that constitutional meaning should reflect popular understandings. This paper explores the relationship between popular opinion and judicial review, with special attention to the social science literature that bears upon the topic. In light of that literature, this paper argues that we have a system of popular constitutionalism that is mediated through politics and media coverage of the courts. The paper begins with a sketch of a normative argument in which popular opinion is relevant to the exercise of judicial review. It then turns to social science to determine if this is the case. Social science studies suggest that public opinion constrains judicial behavior, and that judicial outcomes typically fall within a range of popular acceptance. There also is a prominent social science theory of diffuse support which holds that even when the public does not approve of judicial decisions, they will - within a range of tolerance - support the idea of judicial review. The diffuse support hypothesis in particular is important to assessing the range of independence enjoyed by the judiciary. This paper explores the ramifications for normative theories of judicial review of social science understandings regarding the relationship between popular opinion and judicial review. The paper concludes by explaining how public opinion can be manipulated, potentially undermining the workings of this system of mediated popular constitutionalism.

Breaking up Is Hard to Do: The Dissolution of Judicial Supervision of Public Services

Abstract: Public services in many states have been placed under federal court supervision. In our 1991 PAR article, we examined the implications of the federal judicial decisions in supervising the Kansas City Metropolitan School District for the “new triumviate” governing public services—public officials, legislators, and judges. In this article, we examine judicial decisions affecting the same school district a decade later to reveal the impact of judicial supervision on the school district and to discern the implications for policy termination. We find that, once begun, judicially mandated federal court supervision of public institutions is not readily terminated, even pursuant to the wishes of the United States Supreme Court.

Courts, Justice, and Efficiency: A Socio-legal Study of Economic Rationality in Adjudication

Abstract: This study explores the socio-legal context of economic rationality in the legal and judicial systems. It examines the meaning and relevance of the concept of efficiency for the operation of courts and court systems,seeking to answer questions such as: in what sense can we say that the adjudicative process works efficiently? What are the relevant criteria for the measurement and assessment of court efficiency? Should the courts try to operate efficiently and to what extent is this viable? What is the proper relationship between 'efficiency' and 'justice' considerations in a judicial proceeding? To answer these questions, a conceptual framework is developed on the basis of empirical studies and surveys carried out mainly in the United States, Western Europe and Latin America. Two basic ideas emerge from it. First, economic rationality has penetrated the legal and judicial systems at all levels and dimensions, from the level of society as a whole to the day-to-day operation of the courts, from the institutional dimension of adjudication to the organizational context of judicial decisions. Far from being an alien value in the judicial process, efficiency has become an inseparable part of the structure of expectations we place on the legal system. Second, economic rationality is not the prevalent value in legal decision-making, as it is subject to all kinds of constraints, local conditions and concrete negotiations with other values and interests.

Tackling the Unconstitutional Overthrow of Democracies

Abstract: There is a rich history of case law within the Commonwealth where there have been legal challenges to the unconstitutional overthrow of Governments. These cases and a commentary on them are set out in this publication. It critically examines the evolution of judicial decisions on the subject. In doing so, it also evaluates jurisprudential theories underpinning these judgements. The position of the Commonwealth, especially since its strong stance against the unconstitutional overthrow of Governments, is set out. Consideration is given to possible constitutional provision which would reinforce democracy and offer protection to citizens against the unconstitutional overthrow of Governments.

Judicial deference under the Human Rights Act 1998

Abstract: Examines the constitutional boundaries of the judicial function in the light of the Human Rights Act 1998, focusing on the courts approach to the interpretive obligations under s3, the power to make declarations of incompatibility under s4, and the concept of judicial deference to statute law and parliamentary sovereignty Discusses the debate around judicial deference and the background to enactment of the 1998 Act, the rules of statutory interpretation and the judiciary's views on the meaning of the obligation to read legislation to give effect to rights under the European Convention on Human Rights 1950 "so far as it is possible to do so" Argues that the concept of judicial deference was not contained within the 1998 Act and that judicial decisions, exemplified by R v A (Complainant's Sexual History), have failed to reflect the structure of the ss3 and 4 which sought to enable the courts to uphold rights while also maintaining the legislature's authority Suggests that the proper application of this dialogue or relational scheme would obviate the need for a further concept of judicial deference

Leximetrics: Why the Same Laws are Longer in Some Countries than Others

Abstract: When do drafters of legal instruments specify details and when do they not? To explore this question, we develop a method called leximetrics that involves comparative quantitative analysis of legal instruments. Using data from the directive process in the European Union, we show: (i) that statute length varies systematically across countries, partially controlling for substance; (ii) that other legal instruments, such as judicial opinions and contracts, are longer in countries with long statutes; and (iii) that both of the above are correlated with a large lawyer population. This paper uses a simple agency model to explain these facts, and offers an agenda for leximetric research.

How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis

Abstract: Judges are “liars.” They “routinely engage in delusion.” They occupy a paradoxical position in this world, one in which their function requires them to make law, while their legitimacy depends on the fiction that they interpret law. It is a strange fiction, but it is a necessary one. The legitimacy of the judicial system requires that the rule of law be above the whims of the individual personalities who happen to occupy positions on the Supreme Court at any given time. Rather, the rule of law must be grounded in objective analysis and immutable logic, reasoning that does not change with the changing of personnel. Otherwise, there would be no reason to accept the decisions of the Court as the governing framework for our society. Judges sustain the fiction that they interpret law, but never create it, by adhering to the doctrine of stare decisis. Stare decisis states that judicial decisionmaking should adhere to precedent. Precedent provides a source external to the judges’ individual opinions that legitimizes their reasoning, supplying ready evidence that judicial decisions are based on more than individual whim. After all, there is a certain amount of security in trusting precedent. Assuming that judges in a series of decisions have conducted independent analyses to confirm their predecessors’ views, and that such a

Judicial Review of Agency Interpretation of Statutes: Deference Doctrines in Comparative Perspective

Abstract: Examined in this article are the deference doctrines developed by courts in the United States, Canada, Britain, Australia and South Africa. Deference doctrines determine when and if courts are to defer to an agency's reasonable interpretation of the ambiguous terms of the statute that the agency administers. The study of deference doctrines in comparative perspective reveals much about the need for agency autonomy in the modern administrative state and the capacity of courts to maintain the delicate balance and remedy abuses of discretion. It also provides an opportunity to determine how well the leading theories of judicial decision making explain the variety of judicial responses to the common problem of deference to agency interpretation of statues.

Toward A Positive Theory of State Supreme Court Decision Making

Abstract: State Supreme Courts have grown in importance during the last thirty years in the formation of public policy. Their judgements determine many aspects of constitutional law, tort reform, judicial selection, and campaign finance reform, among others. A vast body of literature has been developed that analyzes State Supreme Court decision making, which emphasizes the conditioning effects of the legal and institutional environment. This article expands on this previous work by incorporating the interaction of the judiciary with other government institutions, and applies the Positive Political Theory approach to law and legal institutions to the State Supreme Court. In addition, the neo-institutionalist literature of the selection process is incorporated to defend a systematic approach towards decision making. Towards that end, this article explores how judicial decisions are conditioned by institutional rules, resulting in a formal modeling of how the State Supreme Courts interact with political actors to form...

Some Developments to the ne bis in idem Principle in the European Union: Criminal Proceedings Against Huseyn Gozutok and Klaus Brugge

Abstract: On 10 February 2003, the European Court of Justice gave its judgment in joined Cases Criminal proceedings against Huseyn Gozutok and Klaus Brugge on the implementation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed on 19 June 1990 (CISA). This decision marked the first time that the Court of Justice had exercised its jurisdiction to rule upon the interpretation of EU third pillar measures relating to police and judicial co-operation in criminal matters, a jurisdiction conferred on it by the Treaty of Amsterdam. It also marked the beginning of a week in which the safeguarding of citizens rights to defence and fair trial, received welcome, if belated, political attention at the European level. The questions referred related to the interpretation of the ne bis in idem principle (the right not to be prosecuted or tried twice for the same criminal conduct) enshrined in Article 54 of the CISA, in particular whether this principle constituted a bar to criminal proceedings in one Member State where prosecutions brought on the same facts in another Member State had been definitively discontinued. Adopting a broad and welcome interpretation of Article 54 of the CISA, the Court held that a person may not be prosecuted in a Member State on the same facts as those of which his/her case has been ‘‘finally disposed of ’’ in another Member State, even if no court has been involved in the settlement of the criminal proceedings and the settlement does not take the form of a judicial decision. In both cases at issue the criminal proceedings had been definitively discontinued following payment of a specific sum determined by the Public Prosecutor’s Office.

Reflecting on continuity and discontinuity in the law: an application of Foucault's archaeological method in a reading of judicial decisions in negligence

Abstract: This thesis is a tentative application of Foucault's archaeological method to the English common law. The project is an attempt at explaining and demonstrating the specific attributes of the method in terms of a contribution to an understanding of the law as both continuous and discontinuous. From the understanding applied in this thesis, an application of the archaeological method requires a careful examination of the monuments of a discourse. The monuments that are examined in this project are a number of negligence law judgments. The authors of the monuments are seen as the sum of the practices that constitute them. That is, in this application of the method to the law, the judges are not considered as authors, instead, the judgments they write are seen as reflecting the practices of the legal discourse. The most fundamental of these discursive practices, from the perspective applied in this thesis is the repetition of past legal statements in the production of judgments. In the understanding of law adopted in this project, cases are treated as sites within which judges choose from a number of possible legal statements made by preceding judges. The common law, then, is seen as representing a process in which statements by particular judges in specific cases are valorised, primarily through repetition, until the alternative utterances are largely, but never completely, excluded. The application of the archaeological method to these negligence decisions demonstrates the operation of the discursive practice of repetition. The application provides a framework for appreciating the way in which the law can change without losing its continuity and legitimacy. The project examines cases between 1750 and 1972 and demonstrates that, despite apparently radical changes in the articulations of liability, from the writ system to the duty of care, the law has maintained its structure through the reproduction of the discursive practices that constitute members of the legal profession.

Traditional social control in an ethnic society: Law enforcement in a Nigerian community 1

Abstract: For the purposes of enforcing judicial decisions in traditional Igbo, decisions are divided into: decisions in civil cases, decisions on crimes against public security, and decisions on crimes against public morality [ ar u , al u , or ns o (crimes that are so serious that they pollute the land, or taboos)]. The parties involved, usually without the involvement of other community members, enforce decisions in civil cases. Community organs and groups enforce decisions on crimes against public security and crimes against public morality. The community organs and groups enforce judgments on behalf of the entire community. Mmanw u (masquerades) are an important means of enforcing judgments on crimes against public security and crimes against public morality. In addition to the community enforcing judgments on crimes against public morality, a convict is often ostracized and expected to go into exile for an extended period of time. The data show that unofficial, traditional Igbo law enforcement strategies are ...

Women and the Law: Leaders, Cases, and Documents

Abstract: A definitive overview of court decisions and legislative victories in the fight for gender equality in U.S. history. Women and the Law: Leaders, Cases, and Documents chronicles the evolution of women's rights from the Revolutionary War to the present day. Spanning the gamut of legal concepts, court decisions, justices, and organizations, this extensive reference also explores a broad range of issues from sexual harassment and spousal abuse to the gender gap in voting and the custody challenge of Baby M. Profiles of Susan B. Anthony, Ruth Bader Ginsburg, Anita Hill, Betty Friedan, and other activists explore their roles in bringing the issue of equal rights for women to the forefront of U.S. politics. A thorough review of key legislative acts, including the 19th Amendment, the Equal Pay Act, the Pregnancy Discrimination Act, Title IX of the Educational Amendments, and more recent rulings like the Violence against Women Act of 1994 reveals the successes, failures, and tenacious efforts of those who are fighting to achieve gender equality in the United States. * A-Z entries ranging from legislation such as Title IX, the Equal Pay Act, and the failed Equal Rights Amendment to pioneers such as Susan B. Anthony, Ruth Bader Ginsburg, and Betty Friedan * An introductory chapter presenting key concepts and issues that pertain to women in U.S. law * A table of cases that features more than 50 key judicial decisions * Chronological coverage of the history of U.S. laws pertaining to gender * An appendix of key original documents in the struggle for equality * Photographs of many important pioneers of women's rights

Civil Justice Systems in Europe and the United States

Abstract: The remarks of Professor Kotz given at the first Herbert L. Bernstein Memorial Lecture comparing civil justice systems in the United States and Germany are presented in this article. Adversariness is the hallmark of the American system with not only cross-examination of witnesses by lawyers, but also preparation of witnesses for cross-examination. Civil procedure in Germany and in other civil law jurisdictions differs from the American system by making the judge responsible for the selection of expert witnesses, for the examination-in-chief of both fact and expert witnesses, and for creating the record based on those examinations. The author notes that the truth is that both in the American and Continental civil justice systems, the power to establish the facts on which the judicial decision rests is reserved to the decision-makers, whether the trial judge or jury in the United States, or the court on the Continent. On the other hand, it is in both systems exclusively for the parties and their lawyers to identify the facts they think will support the claim or defense, to make the appropriate factual allegations, and to nominate the witnesses and the facts of which they allegedly have knowledge. It follows that in their own ways both the German and American systems are adversary systems of civil procedure. In both systems the lawyers advance partisan positions from first pleadings to final arguments. In both systems the parties and their lawyers investigate and identify in their briefs the facts they think will support their claims and defenses. In both systems the court cannot go beyond the parties' factual contentions nor can the court strike out on its own in the search for what it believes might be the real truth. He concludes with thoughts on the controversies over transplanting legal institutions from one society to another and the strengths and weaknesses of the two systems of civil procedure in different types of cases.

What Determines Judicial Prestige? An Empirical Analysis for Judges of the Federal Court of Australia

Abstract: This article examines judicial citations to analyze the determinants of judicial prestige in the Federal Court of Australia. First we construct two alternative measures of judicial prestige for all current and retired judges of the Federal Court. Second, we regress these measures of judicial prestige on a series of explanatory variables covering age on appointment, appointing government, prior experience, which law school the judge attended, how many law review articles the judge has published, gender, and tenure. We compare our results with those of previous studies that examine the determinants of judicial influence and prestige in courts in the United States and the High Court of Australia. One of the main contributions of the article is to provide evidence from an intermediate appellate court that can be used to test the general application of findings as to what determines judicial prestige in the United States to courts in other countries with different institutional frameworks.