Showing papers on "Judicial opinion published in 2010"

Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary

Abstract: Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a data set of state high court opinions, we construct measures for three aspects of judicial performance: effort, skill, and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. Appointed judges write higher quality opinions than elected judges do, but elected judges write more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges are not less independent than appointed judges. The results suggest that elected judges focus on providing service to the voters, whereas appointed judges care more about their long-term legacy as creators of precedent. If the state has a problem with judicial impartiality, it is largely one the state brought upon itself by continuing the practice of popularly electing judges. Justice O’Connor, concurring in Republican Party of Minn. v. White, 536 U.S. 765, 792 (2002).

The Limits of Judicial Independence

Abstract: This book investigates the causes and consequences of congressional attacks on the US Supreme Court, arguing that the extent of public support for judicial independence constitutes the practical limit of judicial independence. First, the book presents a historical overview of Court-curbing proposals in Congress. Then, building on interviews with Supreme Court justices, members of Congress, and judicial and legislative staffers, the book theorizes that congressional attacks are driven by public discontent with the Court. From this theoretical model, predictions are derived about the decision to engage in Court-curbing and judicial responsiveness to Court-curbing activity in Congress. The Limits of Judicial Independence draws on illustrative archival evidence, systematic analysis of an original dataset of Court-curbing proposals introduced in Congress from 1877 onward and judicial decisions.

The Living Constitution

Abstract: Supreme Court Justice Antonin Scalia once remarked that the theory of an evolving, "living" Constitution effectively "rendered the Constitution useless." He wanted a "dead Constitution," he joked, arguing it must be interpreted as the framers originally understood it. In The Living Constitution, leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence-a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the modern world, and the pointlessness of chaining ourselves to decisions made centuries ago. David Strauss is one of our leading authorities on Constitutional law-one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the Constitution can remain vital to life in the twenty-first century.

Public Opinion and Senate Confirmation of Supreme Court Nominees

Abstract: Does public opinion influence Supreme Court confirmation politics? We present the first direct evidence that state-level public opinion on whether a particular Supreme Court nominee should be confirmed affects the roll-call votes of senators. Using national polls and applying recent advances in opinion estimation, we produce state-of-the-art estimates of public support for the confirmation of 10 recent Supreme Court nominees in all 50 states. We find that greater home-state public support does significantly and strikingly increase the probability that a senator will vote to approve a nominee, even controlling for other predictors of roll-call voting. These results establish a systematic and powerful link between constituency opinion and voting on Supreme Court nominees. We connect this finding to larger debates on the role of majoritarianism and representation.

In Whose Name? An Investigation of International Courts’ Public Authority and its Democratic Justification

Abstract: In many grand theoretical sketches court judgments are epitomes of sovereign rule. How may such judicial power be justified nowadays? Many domestic courts decide in the name of the people and thus invoke the authority of the democratic sovereign literally at the very beginning of their decisions. International courts, to the contrary, do not expose in whose name they speak the law. This void sparks our driving question: how does the power of international courts relate to the principle of democracy? In other words, how can the rule of international courts be justified in accordance with basic premises of democratic theory?This contribution’s first step recalls the progressive demand for international compulsory jurisdiction that has pervaded the currently prevalent understanding and that forms the target of our critique (II). The second step unfolds international judicial decisions’ most significant problems of justification in light of the principle of democracy. We place particular emphasis on the lawmaking dimension of international judgments (III A) and conceive them as an exercise of public authority (III B). The increasingly powerful judiciary withdraws the law from the grasp of political-legislative bodies – the most important source of democratic legitimation (III C 1). A constitutionalist reading of international law and adjudication is unconvincing and cannot justify the decoupling of law and parliamentary politics. (III C 2). We then show that processes of fragmentation are fuelled by the agency of multiple courts and argue that this constitutes a further problem in the democratic justification of international courts’ public authority (III C 3).In a third step we turn to strategies in response to the problems. Doubts about the justification of a decision are usually met with procedural adjustments (IV A), elections traditionally respond to the exercise of public authority (IV B), and systemic interpretation as well as a dialogue between courts may bear the potential of easing concerns that spring from processes of fragmentation. Even if all strategies were spelled out in more detail and were met to full satisfaction, we retain the impression that international courts may not always be in a position to carry the whole burden of justifying their authority. Domestic constitutional organs then step in. They unburden the international level from shouldering the whole weight of justification by deciding about the effect of international decisions in the municipal legal order (V). Our critique ultimately shows that the normative vanishing point for the future development of the international judiciary should be the idea of the cosmopolitan citizen (VI).

Justices and Legal Clarity: Analyzing the Complexity of Supreme Court Opinions

Abstract: Legal clarity is important to understand and measure because of its connection to the rule of law. We provide the first systematic examination of the clarity of Supreme Court opinions and discover five important results. First, certain justices systematically craft clearer opinions than others. Justices Scalia and Breyer write the clearest opinions while Justice Ginsburg consistently writes the most complex opinions. Second, ideology does not predict clarity. Third, all justices write clearer dissents than majority opinions, while minimum winning coalitions produce the clearest majority opinions. Fourth, justices across the board write clearer opinions in criminal procedure cases than in any other issue area. Finally, opinions that formally alter Court precedent render less clear law, potentially leading to a cycle of legal ambiguity.

Gender, Critical Mass, and Judicial Decision Making

Abstract: We examine the role of gender in legal decision making by applying critical mass theory to the U.S. federal district courts. We analyze whether behavioral differences manifest themselves in the decision-making proclivities of male and female judges, contingent on the existence of a critical mass of female judges at a court point (i.e., each city in which a district court is located). Our results indicate that women jurists exhibit distinctive behavior in certain cases when there is a critical mass of women at a court point. These differences are most significant in criminal justice cases; modest differences between men and women are also identified in civil rights and liberties cases. Gender is not significant in labor and economic regulation cases. These findings suggest that the increasing presence of women on the federal bench could have substantial policy ramifications in the American polity.

Workplace Bullying: A Review of Litigated Cases

Abstract: Using policy-capturing methodology, this study examined the nature of workplace bullying in a random sample of 45 litigated cases in the United States. Among the findings were that most of the cases were in the District Court. Nearly one-fifth of the cases involved physical violence, the majority of the cases were in the public sector, and the supervisor was the perpetrator in many of the cases. The presence of a policy banning workplace bullying was present in slightly more than one-third of the cases. A striking finding was that 73.3% of the cases were found in favor of the employer as the defendant. These findings support the fact that even though there are no specific workplace bullying laws in the U.S., victims of workplace bullying can be legally protected. Implications for managerial practice and future research are suggested.

Ideological Influences on Decision Making in the Federal Judicial Hierarchy: An Empirical Assessment

Abstract: Scholars of judicial politics have long speculated that the factors influencing judicial decision making operate to varying degrees at different levels of the judicial hierarchy. We investigate what we term the “hierarchy postulate”: that the effect of judges’ policy preferences on their decisions increases as one moves up the judicial hierarchy. Using original data on cases decided at each level of U.S. federal courts, which allow us to evaluate the impact of policy preferences on judicial decision making while holding constant the influence of case-specific factors, we find robust support for the contention that ideological and policy-related influences on federal judges’ decisions are larger at higher levels of the judicial hierarchy.

The psychology of judicial decision making

Abstract: Over the years, psychologists have devoted uncountable hours to learning how human beings make judgments and decisions. As much progress as scholars have made in explaining what judges do over the past few decades, there remains a certain lack of depth to our understanding. Even where scholars can make consensual and successful predictions of a judge's behavior, they will often disagree sharply about exactly what happens in the judge's mind to generate the predicted result. This volume of essays examines the psychological processes that underlie judicial decision making. The first section of the book takes as its starting point the fact that judges make many of the same judgments and decisions that ordinary people make and considers how our knowledge about judgment and decision-making in general applies to the case of legal judges. In the second section, chapters focus on the specific tasks that judges perform within a unique social setting and examine the expertise and particular modes of reasoning that judges develop to deal with their tasks in this unique setting. Finally, the third section raises questions about whether and how we can evaluate judicial performance, with implications for the possibility of improving judging through the selection and training of judges and structuring of judicial institutions. Together the essays apply a wide range of psychological insights to help us better understand how judges make decisions and to open new avenues of inquiry into the influences on judicial behavior.

Let My People Go: Ethnic In‐Group Bias in Judicial Decisions—Evidence from a Randomized Natural Experiment

Abstract: Does ethnic identity affect judicial decisions? We provide new evidence on ethnic biases in judicial behavior by examining the decisions of Arab and Jewish judges in first bail hearings of Arab and Jewish suspects in Israeli courts. Our setting avoids the potential bias from unobservable case characteristics by exploiting the random assignment of judges to cases during weekends and by focusing on the difference in ethnic disparity between Arab and Jewish judges. The study concentrates on the early-stage decisions in the judicial criminal process, controlling for the state's position and excluding agreements, thereby allowing us to distinguish judicial bias from other sources of ethnic disparities. We find systematic evidence of in-group (same ethnic group) bias in detention decisions. However, in cases where the decision is to detain, no ethnic bias was found in the length of the detention. Possible interpretations and implications of these findings are discussed.

“Citations in the U.S. Supreme Court: An Empirical Study of their use and Significance

Abstract: Supreme Court citations are rarely the subject of rigorous analysis. This Article presents an empirical examination of Supreme Court opinion citation practices since World War II, with a focus on the era from the Warren Court through the end of the Rehnquist Court. After theoretically analyzing the role of citations in judicial opinions and their significance, we explain how they may be used as a test of stare decisis and the Court’s projection of power and legitimation of its authority. We measure both the raw number of citations in majority opinions and the significance of the cases cited (using a calculation of their network centrality at the time of the decision). Various factors significantly influence citation frequency and choice, including the type of case. After controlling for these factors, we consider the relative citation practices of the Justices of the Court since the 1950s. This method allows us to find that political legitimation of decisions is a key determinant of citations, but that legal factors also matter. We also explore the citation practices of individual Justices. Our findings are consistent with the conventional wisdom in some instances, but serve to dispel other common beliefs. For example, we find that Justices Black and Douglas showed relatively little devotion to precedents but the Warren Court more generally was concerned about stare decisis. In the recent era, Justice Souter stands out for his citation practices. Finally, we examine the implications, on future citation use,

The Statistical Analysis of Judicial Decisions and Legal Rules with Classification Trees

Abstract: A key question in the quantitative study of legal rules and judicial decision making is the structure of the relationship between case facts and case outcomes. Legal doctrine and legal rules are general attempts to define this relationship. This article summarizes and utilizes a statistical method relatively unexplored in political science and legal scholarship— classification trees—that offers a flexible way to study legal doctrine. I argue that this method, while not replacing traditional statistical tools for studying judicial decisions, can better capture many aspects of the relationship between case facts and case outcomes. To illustrate the method’s advantages, I conduct classification tree analyses of search and seizure cases decided by the U.S. Supreme Court and confession cases decided by the courts of appeals. These analyses illustrate the ability of classification trees to increase our understanding of legal rules and legal doctrine.

The Strategic Analysis of Judicial Decisions

Abstract: Since the 1990s, there has been an explosion of empirical and theoretical work dedicated to advancing strategic accounts of law and legal institutions. Reviewing this extensive literature could be accomplished in multiple ways. We chose an approach that underscores a major contribution of strategic accounts: that they have forced scholars to think about the interdependent—i.e., strategic—nature of judicial decisions. On strategic accounts, in other words, judges do not make decisions in a vacuum, but rather take into account the preferences and likely actions of other relevant actors, including their colleagues, their judicial superiors, and members of the other branches of government. After defining strategic analysis and how it differs from other approaches to judicial decisions, we examine the literature on the forms of strategic behavior in which (preference-maximizing) judges engage when interacting with these three sets of actors.

Executive Discretion, Judicial Decision Making, and Separation of Powers in the United States

Abstract: Existing work on the U.S. separation of powers typically views the Supreme Court as the final arbiter of constitutional and statutory disputes. By contrast, much comparative work explicitly recognizes the role of executives in enforcing and implementing court decisions. Drawing on that work, this study relaxes the assumption that executives must comply with Supreme Court rulings, and instead allows the propensity for executive compliance to depend upon indirect enforcement by the public. We develop a simple model of Supreme Court decision making in the presence of executive discretion over compliance and demonstrate that such discretion can restrict substantially the Court’s decision making. Using data collected for the Warren and Burger courts, we find evidence consistent with the argument that the Supreme Court’s ability to constrain exective descretion depends critically upon the public.

The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions

Abstract: Do campaign contributions affect judicial decisions by elected judges in favor of their contributors’ interests? Although the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. relies on this intuition for its logic, it has been until now largely a proposition that has gone empirically untested. No longer. Using a dataset of every state supreme court case in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions that they have received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with an increase in the probability that the judges will vote for business litigants. However, we find surprisingly a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests only for judges elected in partisan elections, not nonpartisan ones. Our findings suggest an important role of political parties in connecting campaign contributions to judicial decisions under partisan elections. In the flurry of reform activity responding to Caperton, our findings support judicial reforms that propose the replacement of partisan elections with nonpartisan methods of judicial selection and retention.

SMEs in the Philippine Manufacturing Industry and Globalization: Meeting the Development Challenges

Abstract: The performance of the judicial system has been thrown into the limelight as business surveys point to its performance as one of the main obstacles and disincentives to doing business in the Philippines. The channels through which judicial decisions may affect business behavior are straightforward: increased uncertainty and high costs. To quantify the perceived effects, a survey of 320 of the top 7000 corporations in the Philippines was conducted in 2001. Our findings show that governance problems are at least as important as economic or financial problems in doing business. Of more direct relevance to the judiciary, difficulties in settling legal conflicts were among the most frequently cited factor affecting business. Further, the current level of functioning of the legal system has an economic impact equivalent to foregoing at least 6-11 percent of total investment in the economy and foregoing at least one-fourth to one-half of a percentage point (0.25-0.46) of GDP growth annually, or an annual loss amounting to between Php7 billion and Php13 billion in 1999 alone. These are significant and recurring economic losses attributable to the nature and functioning of institutions and form a strong case for judicial reform. JEL classification: K41, L14, D23

Treasure Hunters, Sunken State Vessels and the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage

Abstract: [Two sets of quite related judicial decisions in the US, regarding in rem actions directed at several Spanish State shipwrecks, have completed a new legal framework that must be kept in mind not only for treasure-hunter companies and any other persons trying to gain any right over the wrecks of sunken State vessels, but also for States trying to seek a clear interpretation of the legal status of those vessels in current international law. These decisions might complete the new legal layout given by the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage, in particular giving full meaning to the ‘without prejudice’ clause included in its Art. 2(8) relating to sovereign immunities and State vessels; they might also ease future ratification of that Convention by reluctant States like the United Kingdom, France or the United States., In July 2009, the European Commission (DG Competition) published a Communication on the pharmaceutical sector. This inquiry was launched because there were some indications that competition in the pharmaceutical market in the European Union might not be working well. The report examines the reasons for the observed delay. This article analyses the outcomes from a critical standpoint, arguing in favour of enhanced ‘soft law’ accountability mechanisms in the pharmaceutical sector, defending conditional patenting and the introduction of a Community patent.]

Court-Driven Reform and Equal Educational Opportunity: Centralization, Decentralization, and the Shifting Judicial Role

Abstract: Judicial decisions focusing on equal educational opportunity involve significant issues of educational governance and often involve explicit questions about the extent to which authority to make educational decisions should be centralized or decentralized across various institutions and entities. This review aims at clarifying scholars’ understanding of court-driven reform of educational governance to leverage equal educational opportunities across the major fields of school desegregation, school finance reform, and school choice. Issues of centralization and decentralization have particularly emerged in courts’ approaches to these fields with respect to both the judicial process and the substance of the policies themselves. An examination of these issues reveals a movement toward the decentralization of authority away from the courts that, at times, has reflected a growing judicial awareness of the courts’ strengths and weaknesses. Based on this examination, a more effective role for the courts in reform...

Judicial Lawmaking at the ad hoc Tribunals: The Creative Use of the Sources of International Law and "Adventurous Interpretation"

Abstract: The UN Security Council’s instruction that the ICTY should apply its Statute without legislating new international law was not realistic because it failed to take into account the underdeveloped nature of international criminal law. This article considers the ad hoc International Criminal Tribunals’ use of the sources of international law in making new law, drawing on Article 38 of the ICJ Statute. The article will focus on the use of customary international law, general principles and judicial decisions. In cases of gaps in the existing law, the Tribunals have made law by resorting to the purposive method of interpretation. The ICTY has justified controversial decisions by referring to the purpose of extending the protection of humanitarian law to areas that have previously been unaffected by humanitarian law. The article will consider instances of such lawmaking in the case law of the Tribunals and ask whether the interpretative methodology used by the judges was justifiable. * BA LLB (Cape Town), LLM (Humboldt), PhD (Leiden, Associate Professor, School of Law, University of Witwatersrand. http://www.zaoerv.de/ © 2010, Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht

Carl Schmitt and Constituent Power in Latin American Courts: The Cases of Venezuela and Colombia

Abstract: If there is a concept in modern constitutional theory that is unlikely to be found in a judicial opinion it is that of constituent power And if there is a jurist not likely to be treated favourably by a court in a constitutional democracy, it is Carl Schmitt Courts, and particularly courts in constitutional democracies, are close to be the exact opposite of the constituent power: they are called to limit political power, to put into practice the constraints placed by constitutionalism both in governments and their peoples Schmitt, one of the most famous 20th century theorists of constituent power, was not only directly associated with National Socialism during the 1930's, but his theory of the constituent subject pointed toward an unlimited and uncontrollable sovereign, a political will whose decisions cannot be limited by any form of positive law Perhaps more importantly, he maintained that constituent power could be exercised at any moment after a constitution is in place, an idea that, at least at first glance, appears as radically alien to the activity of deciding cases according to the established law Latin American courts, however, represent an important exception to this rule It is not only common for courts in this region to discuss in detail the theory of constituent power, but also to explicitly adopt the Schmittian conception of constituent power as surviving “alongside and above” the Constitution This paper will examine two key judicial opinions from Venezuela and Colombia, which suggest that the theory of constituent power, as conceived by Schmitt, should not be summarily rejected as an invitation to absolute and arbitrary rule The first of these decisions, Opinion No 17 of the Supreme Court of Justice of Venezuela (1999), provides an example of the former in the context of the exceptional moment of constitution-making There, the court declared that 'the people' was not bound by the amendment procedure contained in the constitution (which only applied to Congress in the exercise of the ordinary power of constitutional reform), and could therefore alter the constitution through other, constitutionally unspecified procedures The second decision, Opinion C-551/03 of the Colombian Constitutional Court (2003), put into practice Schmitt's theory of implicit limits to constitutional reform, ruling that the constituted powers (that is, the executive and legislative powers) could not engage use the constitution’s amendment procedure to introduces changes so fundamental that amount to the creation of a new constitution (something that can only be done by the bearer of the constituent power) These decisions show that the Schmittian conception of an unlimited and ever present constituent power can be deployed by courts both as an enabling and limiting force That is, as a justification for the idea of a legally unbound popular will, but also as a way of limiting political power in profound ways

The Equal Access Act: â Not the Access for All Students Except Gay Students Actâ : Federal Judicial Decisions and Their Implications for School Systemsâ Policies and Practices Regarding Student Requests to Establish Gay Straight Alliance Clubs in Public Schools

Abstract: ................................................ii Dedication...............................................iv Acknowledgements..........................................v List of Tables..........................................xii Preface................................................xiii Chapter I.................................................

The One and Only Substantive Due Process Clause

Abstract: The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments is one of the most debated topics in all of constitutional law At the core of this debate is the question of whether these Clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain “substantive” protections as well An important, though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive-due-process question must be the same for both provisions This article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: Did the original meaning of each Clause, at the time of its enactment, encompass a recognizable form of substantive due process‘ At the time of the Fifth Amendment’s ratification in 1791, the phrase “due process of law,” and the closely related phrase “law of the land,” were widely understood to refer primarily to matters relating to judicial procedure with the second phrase having a somewhat broader connotation referring to existing positive law Neither of these meanings was broad enough to encompass something that would today be recognized as “substantive due process” Between 1791 and the Fourteenth Amendment’s enactment in 1868, due process concepts evolved dramatically, both through judicial decisions at the state and federal levels and through the invocation of due-process concepts by both pro-slavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery By 1868, a recognizable form of substantive due process had been embraced by courts in at least 20 of the 37 then-existing states as well as by the United States Supreme Court and by the authors of the leading treatises on constitutional law As a result, my conclusion is that the original meaning of one, and only one, of the two Due Process Clauses – the Due Process Clause of the Fourteenth Amendment – was broad enough to encompass a recognizable form of substantive due process

An Empirical Survey of Climate Change Litigation in the United States

Abstract: A quickly growing number of commentators have suggested that the domestic U.S. courts are already significant drivers of climate change policy, and their role is likely to increase. Carol Browner, Director of the White House Office of Energy and Climate Change Policy, for example, has suggested that “the courts are starting to take control” of climate change. In addition to fashioning law on their own, judicial decisions have significant implications for the work of the other branches, For example, in characterizing the Second Circuit’s recent decision in Connecticut v. American Electric Power a significant victory for activists because of its favorable holdings on standing and justiciability grounds, Professor Richard Lazarus notes that a major challenge for “environmentalists” is “how best to use this win to help promote meaningful climate change legislation in Congress and regulatory action by EPA, where the issues will best be addressed.” The foundational gap we seek to begin to fill in this Article is an empirically-based chronicling of climate change activity in the judicial arena. In particular, we have reviewed, and coded for a broad variety of attributes, every climate change case that has been resolved to date (through December 31, 2009); and, if a case has been filed but no resolution has yet been reached, we have reviewed (and coded) the complaint and other documents in the court docket. In all our study covers over 130 active or resolved pieces of climate change litigation. We hope that this project will contribute in two important respects to understanding of the action in the courts on climate change to date. First, we compile and present basic information about the cases brought to date (e.g., the types of cases, where they have been brought, the types of plaintiffs and defendants involved, and the outcomes). In addition, we provide an additional layer of analysis through our synthesis of this information and our identification of trends that have emerged thus far. Our purpose in this Article, in short, is to present an empirically-based picture of what one New York Times headline describes as courts serving as “battlefields” in “climate fights.”

Meddling with justice: Competitive politics, impunity, and distrusted courts in post-orange Ukraine

Abstract: The judiciary in post-Orange Ukraine is in deep crisis.1 By 2010, as Ukraine marked the fifth anniversary of the Orange Revolution, both domestic and foreign observers were decrying judicial dependence and corruption in the country.2 The winner of the Orange Revolution, then-President Viktor Yushchenko, repeatedly blamed the judicial system for serving as a "brake" to the country's democratic development.3 After losing her bid for the presidency to the opposition leader Viktor Yanukovych in February 2010, then-Prime Minister Yulia Tymoshenko accused the High Administrative Court of dishonesty and pro-Yanukovych bias for their failure to expose electoral fraud. She went on to accuse the Constitutional Court of corruption and shamelessness for declaring pro- Yanukovych parliamentary coalition constitutional.4 President Viktor Yanukovych, newly elected, also vowed to get rid of pliant and corrupt judges.Judges have used every occasion to complain in public that the judicial system is in crisis due to unprecedented pressure from public officials.5 Freedom House reported that the "judicial framework and independence" was stronger in the Ukraine of 1999 than it was in 2009. The World Bank also revealed that the Ukraine of 1996 had a better "Rule of Law" score than the Ukraine of 2008. Newspapers and TV shows have been full of stories about the growing prices of judgeships and judicial decisions. And Ukrainians themselves increasingly distrust the judiciary-only 4 percent of them approve of the performance of courts.How and why does the Ukrainian judiciary suffer from greater pressure and dependence, deeper corruption, and public disdain while at the same time featuring highly contested, free and fair national and local elections; alternating parties in power; flourishing freedom of the mass media; heavy involvement of international donors in legal reform, and (up until the advent of the global financial crisis in the fall of 2008) high levels of foreign investment in the growing seven-percent-a-year economy? More generally, how and why do highly competitive elections and highly fragmented politics go hand-in-hand with the weakening of judicial power?Addressing these questions is crucial for our understanding of the actual dynamics of judicial empowerment, because the experience of Ukrainian judicial politics runs against the predictions of the mainstream theories of judicial empowerment. These theories argue that the following three conditions are necessary, if not sufficient, for developing accessible, independent, and powerful judiciary: 1) strong political opposition, 2) fragmentation of political and economic power, and 3) vibrant "electoral" markets. Post-Orange Ukraine has all of these conditions, yet they exist simultaneously with an increasingly dependent judiciary.This essay argues that increasingly competitive elections and highly fragmented politics accompany weaker courts in Ukraine because rival elites continue playing power politics in order to gain and/or remain in power. The high stakes of political competition force rival elites to use all available resources (including courts) to win elections, to hold onto power, or to undermine the political and economic bases of rivals. Politicians and economic magnates can get away with this clearly criminally punishable behavior due to the entrenchment of impunity, which subservient courts only strengthen. Fearing no sanctions for obstructing justice, the powerful feel that they can intervene in any judicial trial. As a result, highly competitive elections and fragmented politics, coupled with well-entrenched impunity, are associated with increasing judicial dependence.To show how and why the rulers and the opposition have faced strong incentives to capture the courts (which in turn were expected to provide important benefits to their patrons) and acted upon these incentives to meddle with judicial decision-making, this essay proceeds to examine the key indicator of judicial disempowerment-the improper interference with judicial decision-making. …

Social Science and the Courts Challenges and Strategies for Bridging Gaps Between Law and Research

Abstract: Social scientists collect vital information that bears on issues of education policy. When the courts are faced with an opportunity to make a decision that shapes education, judges need access to high-quality research, but they must also be convinced that it can be useful in their decision making. This article approaches the question of how social science can be made more effective in judicial decision making. The authors examine the use of social science evidence by the courts and the theories of jurisprudence that bear on its effectiveness. As an example of the difficulty of influencing the outcome of a case, they review the U.S. Supreme Court’s decision involving the use of race in school assignments in Parents Involved in Community Schools v. Seattle School District No. 1 (2007).

Unconscious Influences on Judicial Decision-Making: The Illusion of Objectivity

Abstract: Judicial decision making is influenced by unconscious decisions and motivations - implicit biases This paper explores how implicit bias impacts judicial decision-making, as well as considerations for minimizing negative impacts of implicit bias

A Theory of Opinion Writing in a Political Hierarchy

Abstract: We develop a model of opinion-writing in the judicial hierarchy. The model adopts a case-space approach to judicial decision-making and exploits informational asymmetries across levels of the hierarchy. In the model, a lower court writes an opinion with two features: a legal rule and a level of quality. An upper court must then decide whether to review the decision. The model yields new insights about the strategic incentives created by the judicial hierarchy. Empirical predictions are derived which demonstrate that several common tests employed in the literature may not discriminate among competing sets of first principles. Additional implications for rule-making in a bureaucratic hierarchy are also considered.